Latest Special issue: Judicial Review & Unilateral Practice Research Program

Foreword Judicial review & burden of proof in unilateral practice cases: an overview of EU and national case law New

The timing of this latest work in the impressive series of Concurrences projects could hardly have been more apt. 2020 was a bumper year, in both EU and national courts, for judgments involving judicial review of enforcement decisions in unilateral cases. At the same time, however, of the most significant unilateral cases pending before the General Court, three – Intel (on renvoi), Google (shopping) and Google (Android) are, at the time of writing, still in délibéré, with judgments expected later this year or next. Lawyers, economists and, above all, businesses at risk of being regarded as dominant, especially in the digital sector, will be looking to the judgments in these cases, each of which has its distinctive facts, to clarify the analytical framework for determining whether, and specifically why, unilateral conduct of a dominant undertaking crosses the – sometimes all too obscure – line into transgression. It, therefore, seemed to the Editors that, while waiting for these three judgments (and then, in all probability, the results of any appeals), many practitioners might find it useful to look back over recent years to see how the judicial review of decisions of competition authorities, both Commission and national (NCAs), has evolved.

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White & Case (Brussels)
White & Case (Brussels)
White & Case (Brussels)

Unilateral Practices

The EU General Court largely dismisses a Big Tech company’s appeal against the Commission’s decision finding it had abused its dominant position by favoring its own comparison shopping service (Google Shopping)
General Court of the European Union (Luxembourg)
The General Court largely dismisses Google’s action against the decision of the Commission finding that Google abused its dominant position by favouring its own comparison shopping service over competing comparison shopping services* The General Court upholds the fine of €2.42 billion imposed on (...)

The EU General Court dismisses the action brought against the Commission’s decision to initiate the formal investigation procedure against two shoe retail companies for transfer pricing (Nike / Converse)
General Court of the European Union (Luxembourg)
Tax rulings issued to Nike and Converse by the Netherlands tax administration: the General Court dismisses the action brought against the Commission’s decision to initiate the formal investigation procedure* The Commission complied with the procedural rules, and neither failed to fulfil its (...)

The German Supreme Court rules that car manufacturers cannot restrict the sales of their cars and spare parts in the tuning industry (Porsche-Tuning II)
Ashurst (Frankfurt)
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Ashurst (Munich)
In a decision of 6 July 2021, published in September 2021, the German Federal Court of Justice ("FCJ") ruled that restrictive clauses in retail and service agreements between Porsche and its authorised distributors were in breach of competition law. Porsche could not prohibit its authorised (...)

The US District Court for the District of Columbia grants motions to dismiss two parallel antitrust complaints filed by the FTC and a group of State AGs against a social media company for monopolization, with the FTC being allowed to file an amended complaint in 30 days (Facebook)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On June 28, 2021, Judge James E. Boasberg of the U.S. District Court for the District of Columbia granted Facebook’s motions to dismiss two parallel antitrust complaints filed by the Federal Trade Commission (FTC) and a group of state enforcers. The complaints accused Facebook of illegally (...)

The US District Court for the District of Colombia dismisses a case filed by the FTC against a Big Tech company due to the lack of plausible evidence that the company has monopoly power in the personal social networking services market (Facebook)
Bona Law (Detroit)
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Bona Law (San Diego)
Facebook Wins First Antitrust Battle: The FTC and State Enforcers Fail to Establish (For Now) Facebook’s Monopoly on Social Media Networks (with update)* In late 2020, the Federal Trade Commission (FTC) and the attorneys-general (AGs) from 48 states filed nearly identical antitrust lawsuits (...)

The Dutch Trade and Industry Appeals Tribunal upholds the annulment of the nearly €41 million abuse of dominance fine imposed by the Competition Authority against a railway company (Nederlandse Spoorwegen)
Bird & Bird (Amsterdam)
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Bird & Bird (The Hague)
On 1 June 2021 the Dutch Trade and Industry Appeals Tribunal (“CBb”), which is the highest administrative court in the Netherlands, upheld the annulment of the nearly € 41 million abuse of dominance fine imposed by the Authority for Consumers and Markets (“ACM”, the Dutch competition authority) on (...)

The UK Competition Appeal Tribunal confirms infringement in paroxetine pay-for-delay case but slashes fines (GlaxoSmithKline)
Ashurst (London)
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Ashurst (London)
The judgment was handed down by the Competition Appeal Tribunal ("CAT") in the paroxetine pay-for-delay case in 2018. However, the CAT decided to wait for a preliminary ruling from the European Court of Justice ("ECJ") on certain questions before determining the remaining grounds of appeal. (...)

The UK Competition Appeal Tribunal confirms a pay-for-delay infringement decision but reduces the fines inflicted (GlaxoSmithKline)
Van Bael & Bellis (Brussels)
On 10 May 2021, the UK’s Competition Appeal Tribunal (“CAT”) issued its final decision in GSK (Paroxetine) – the long-running saga concerning pay-for-delay patent settlement agreements between GSK and several generics. The CAT upheld the Competition and Markets Authority’s (“CMA”) finding of an (...)

The Danish Competition Appeals Tribunal upholds the Competition Authority’s decision stating that a print circulars distributor abused its dominant position (FK Distribution)
Danish Competition and Consumer Authority (Copenhagen)
Danish Competition Appeals Tribunal: FK Distribution has abused its dominant position* The Danish Competition Appeals Tribunal has upheld a June 2020 decision by the Danish Competition Council stating that FK Distribution abused its dominant position on the market for distribution of (...)

The Danish Competition Appeals Tribunal upholds a decision by the Competition Authority against the biggest distributor of unaddressed mail for abuse of dominant position by tying its sale of print circulars with its sale of viewing of circulars on several of its digital platforms (FK Distribution)
Bird & Bird (Copenhagen)
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Bird & Bird (Copenhagen)
On the 27th April 2021, the Danish Competition Appeals Tribunal (“DCAT”) upheld a June 2020 decision by the Danish Competition Council (“DCC”). The DCC concluded that FK Distribution (FK), as the biggest distributor of unaddressed mail (print circulars) in Denmark, had abused its dominant position (...)

The Delhi High Court reviews the Competition Authority’s inquiry into a Big Tech company’s data privacy policy (WhatsApp)
Vaish Associates Advocates (New Delhi)
Delhi High Court Judgement on CCI Inquiry into WhatsApp’s new data privacy policy in India* While reporting on the initial media news in my earlier blog on the same topic published on 23 April 21 , I had promised to come back with a detailed reporting on the above judgment which was then not (...)

The Delhi High Court upholds the Competition Authority’s order of directing an investigation into the privacy policy rolled out by a Big Tech company (WhatsApp)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
KEY POINTS Mere pendency of some issues before the Hon’ble Supreme Court of India (“Supreme Court”), or any of the High Courts does not necessarily bar CCI from exercising jurisdiction otherwise vested with it under the Act. BRIEF FACTS Whatsapp LLC (“WhatsApp”) is the proprietor of the popular (...)

The UK Competition Appeal Tribunal confirms the Competition Authority’s settlement policy following the appeal of a musical instrument company (Roland)
Ashurst (London)
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Ashurst (London)
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Ashurst (London)
Roland UK ("Roland") appealed the level of the penalty imposed by the Competition and Markets Authority ("CMA") for engaging in resale price maintenance ("RPM") in relation to the supply of electronic drums. Roland argued that the Competition Appeal Tribunal ("CAT") should reduce the penalty (...)

The UK Competition Appeal Tribunal provides guidance for post-Brexit permission to serve out applications and confirms that damages occasioned by anti-competitive conduct will not be narrowly construed (Epic Games / Apple / Google)
Hausfeld (London)
The Tribunal issued its combined permission to serve out of the jurisdiction judgment in Epic Games v Apple (the Apple Claim) and Epic Games v Google (the Google Claim) on 22 February 2021, declining permission for service on Apple Inc. and granting permission for service for a subset of (...)

The Paris Commercial Court imposes a €1.2 million fine on a Big Tech company for abuse of dominant position (Google / Oxone)
Addleshaw Goddard (Paris)
In the context of a stand-alone action – which falls under the new provisions resulting from the transposition of the Damages Directive – the Paris Commercial Court ruling at first instance orders Google to pay EUR 1,2 million in damages to Oxone, a telephone directory services company. Oxone (...)

The Paris Commercial Court rules that a Big Tech company is to pay €1.27 million in antitrust damages for abuse of its dominant position in the online search advertising market (Google / Oxone)
Hausfeld (London)
Following a stand-alone claim filed by a directory enquiry services provider, the Paris Commercial Court ruled, on 10 February 2021, that Google holds a dominant position in the online search advertising market through Google Ads and abuses that position by setting up rules which are “neither (...)

The EU Court of Justice upholds the General Court’s ruling finding that an information request issued by the Commission as part of its investigation into a Big Tech company’s predatory pricing practices is valid (Qualcomm)
Ashurst (Brussels)
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Ashurst (London)
On 28 January 2021, the European Court of Justice ("ECJ") upheld a ruling of the General Court finding that an information request issued by the EU Commission, as part of its investigation into Qualcomm’s predatory pricing practices, did not breach the principles of necessity and (...)

The EU Court of Justice confirms the Commission’s power to issue a request for additional information after a statement of objections (Qualcomm)
Van Bael & Bellis (Brussels)
On 28 January 2021, the European Court of Justice (“ECJ”) handed down a judgment in Case C-466/19 P (Qualcomm Inc. and Qualcomm Europe v. European Commission). Following a complaint submitted in 2010 by Icera Inc., a producer and distributor of soft chipsets which deliver high-performance (...)

The Luxembourg Administrative Tribunal rules on the competence of the Competition Authority in matters of post control of concentrations in the energy sector (Fédération des Artisans / Encevo / Enovos Luxembourg / Paul Wagner / Fils)
Bonn & Schmitt (Luxembourg)
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Bonn & Schmitt (Luxembourg)
I. Introduction On January 25, 2021 the Administrative Tribunal of the Grand Duchy of Luxembourg (hereinafter the “Administrative Tribunal”) rendered a judgment ruling for the first time on the competence of the Competition Council of the Grand Duchy of Luxembourg (hereinafter the “Competition (...)

The German Parliament passes the 10th amendment to the Act against Restraints of Competition which provides modifications and changes regarding abuse control
Hogan Lovells (Dusseldorf)
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Hogan Lovells (Dusseldorf)
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Hogan Lovells (Dusseldorf)
On 14 January 2021, the German parliament passed the long-awaited 10th amendment to the Act against Restraints of Competition (ARC). This came after the governing parties, CDU/CSU and SPD, had submitted a final amendment "at the eleventh hour" which provided for some additional modifications (...)

The Danish Maritime and Commercial High Court confirms a decision of the Competition Authority finding that a German internal combustion engine manufacturer had both abused its dominant position and entered into an anti-competitive agreement with its Danish dealer (Deutz / Diesel Motor Nordic)
Van Bael & Bellis (Brussels)
On 11 January 2021, the Danish Maritime and Commercial High Court (“MCC”) confirmed a decision of the Danish Competition Council (“DCC”) finding that the German internal combustion engine manufacturer Deutz had both abused its dominant position and entered into an anti-competitive agreement with (...)

The Danish Maritime and Commercial High Court confirms the Competition Authority’s decision stating that a Swedish engine manufacturer abused its dominant position (Deutz / Diesel Motor Nordic)
Danish Competition and Consumer Authority (Copenhagen)
Danish Maritime and Commercial High Court: Deutz and Diesel Motor Nordic infringed competition legislation by preventing the supply of spare parts for the IC3-trains* On 11 January 2021, the Maritime and Commercial High Court has confirmed that Deutz abused its dominant position by refusing to (...)

The Danish Maritime and Commercial High Court upholds the Competition Authority’s decision finding an abuse of dominance and an anti-competitive agreement between a German internal combustion engine manufacturer and its national distributor in the railway sector (Deutz / Diesel Motor Nordic)
Bird & Bird (Copenhagen)
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Bird & Bird (Copenhagen)
The case centred around a consortium that was handling the renovation of the engines of the IC3 trains of the Danish State Railways. A member of the consortium, Fleco ApS (Fleco), was in several ways restricted from buying spare parts to be used in the renovation of the train engines. The (...)

The Croatian Administrative Court upholds the Competition Authority’s decision that fined a fruits and vegetable company for the imposition of unfair trading practices (NTL)
Croatian Competition Agency (Zagreb)
UTPS: Administrative Court upholds CCA decision sanctioning NTL 450,000 kuna for imposition of unfair trading practices* The Administrative Court in Zagreb completely rejected the statement of claim of Narodni trgovački lanac d.o.o. (NTL) in the administrative dispute against the decision of (...)

The Croatian Administrative Court upholds the Competition Authority’s decision fining watermelon re-seller for imposition of unfair trading practices (Fragaria)
Croatian Competition Agency (Zagreb)
UTPS: Administrative court upholds CCA decision sanctioning Fragaria 350,000 kuna for imposition of unfair trading practices* On 16 December 2020 the Administrative Court in Zagreb completely rejected the statement of claim of the re-seller Fragaria d.o.o. in the administrative dispute (...)

The Turkish Administrative Court renders decisions setting the bar for the standard of proof for abuse of dominance (Sahibinden.com) (Enerjisa)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
In 2019 and 2020, Turkish administrative courts handed down noteworthy judgments concerning two particular decisions of the Turkish Competition Board (“Board”). In both of these cases, namely the (i) Sahibinden Bilgi Teknolojileri Pazarlama ve Tic. A.Ş. (“Sahibinden”) judgment rendered by the Ankara (...)

The Indian Supreme Court upholds the Indian Company Law Appellate Tribunal’s decision regarding the no hub-and-spoke cartel involving two ride-hailing platforms in the automobile services market for fixing cab fares through their apps (Uber / Ola)
Vaish Associates Advocates (New Delhi)
Uber and Ola finally win antitrust case in India -Supreme Court upholds NCLAT decision -No Hub and Spoke cartel – (but importantly rejects NCLAT decision on lack of locus standi)* The Supreme Court of India vide its judgment dated 15.12. 2020 has upheld the concurrent findings on merits of (...)

The EU Court of Justice states that the fee structure for music played at festivals adopted by collecting societies is not necessarily abusive (SABAM)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 25 November 2020, the Court of Justice of the European Union (the CJEU) delivered a judgment in case C-372/19 holding that the fee structure for music played at festivals adopted by collecting societies such as SABAM is not necessarily abusive under Article 102 TFEU. The case had come before (...)

The EU Court of Justice rules that the fee structure for music played at festivals adopted by a Belgian collecting society is not abusive (SABAM)
Van Bael & Bellis (Brussels)
On 25 November 2020, the Court of Justice ((“ECJ”) delivered a judgment in Case C-327/19, ruling that the fee structure for music played at festivals adopted by the Belgian collecting society SABAM is not necessarily abusive under Article 102 TFEU. The case came before the ECJ by way of a (...)

The EU Court of Justice rejects allegations of an abuse of dominance through unfair pricing by the Belgian collective management organization for copyright (SABAM)
University of Liège
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University of Liège
On 25 November 2020, the Court of Justice of the European Union (‘CJEU’ or ‘Court’) rendered its judgment on the alleged abuse of dominance by the only Belgian collective management organisation for copyright in musical works (the SABAM). In this decision, the Court confirms that calculation of (...)

The EU Court of Justice publishes its judgment stating that the fee structure for music played at festivals adopted by the Belgian collecting society is not necessarily abusive (SABAM)
Portolano Cavallo (Milan)
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Portolano Cavallo (Milan)
On November 25, 2020, the Court of Justice (“ECJ”) rendered its judgment in Case C-327/19, stating that the fee structure for music played at festivals adopted by the Belgian collecting society SABAM is not necessarily abusive under Article 102 TFEU. The case originated with a request for a (...)

The Brussels Court of Appeal annuls the Competition Authority’s decision rejecting a football club’s request for interim measures (Virton / RBFA)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
In a judgment delivered on 19 November 2020, the Markets Court of the Brussels Court of Appeal (Marktenhof / Cour des marchés) (the Markets Court) annulled the decision adopted on 29 June 2020 by the Competition College (Mededingingscollege / Collège de la concurrence) of the Belgian Competition (...)

The EU General Court maintains the Commission’s decision finding that a Lithuanian railway company abused its dominant position on the national rail freight sector (Lietuvos geležinkelai)
Van Bael & Bellis (Brussels)
On 18 November 2020, the General Court (“GC”) issued its judgment confirming the European Commission’s (“Commission”) decision to fine Lithuanian Railways for the abuse of its dominant position on the Lithuanian rail freight market. The GC rejected all of the appellant’s complaints, but reduced the (...)

The EU General Court upholds the Commission’s decision finding that the national railway company of Lithuania abused its dominant position on the national rail freight market (Lietuvos geležinkelai)
General Court of the European Union (Luxembourg)
The General Court upholds the Commission’s decision finding that the national railway company of Lithuania abused its dominant position on the Lithuanian rail freight market* Lietuvos geležinkeliai AB (‘LG’), the national railway company of Lithuania, both manages railway infrastructure and (...)

The EU General Court confirms the Commission’s decision finding that a national rail company abused its dominant position on the market (Lietuvos geležinkelai)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
The Factors Affecting the Use of Essential Facilities Doctrine in Light of the Lithuanian Railway v Commission Decision: A Comparison with the Turkish Practice and Potential Implications 1) Introduction On November 18, 2020, the General Court of the European Union (“General Court”) upheld the (...)

The EU General Court confirms the Commission’s decision finding that the Lithuanian railway incumbent abused its dominant position by dismantling a rail track (Lietuvos geležinkelai)
University of Liège
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OECD - Competition Division (Paris)
Comment On 18 November 2020, the General Court of the European Union (‘GC’) delivered its ruling in the Lietuvos geležinkeliai [Lithuanian Railways] case and upheld the European Commission’s decision in which the national railway company of Lithuania was found to have abused its dominant position (...)

The Hungarian Supreme Court upholds Competition Authority’s finding that a food retail company has abused its dominance (Auchan)
Hungarian Competition Authority (Budapest)
The GVH won the case against Auchan at the Curia of Hungary* Budapest, 13 November 2020 - The Curia of Hungary upheld in its entirety the GVH’s decision to impose a record fine of more than one billion forints. Thus, it has now become final that Auchan has abused its significant market power. (...)

The US DoJ files an antitrust complaint against a search engine for abuse of dominant position (Google)
Orrick, Herrington & Sutcliffe (Washington)
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Orrick, Herrington & Sutcliffe (Washington)
On October 20, the U.S. Department of Justice filed its long-awaited antitrust complaint against Google, joined by 11 state Attorneys General (Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, South Carolina, and Texas). The lawsuit was filed in the U.S. (...)

The German Federal Court of Justice rules on the burden of proof for showing exhaustion of trademark right (Amazon / Coty)
Van Bael & Bellis (Brussels)
On 15 October 2020, the German Federal Court of Justice (“FCJ”) issued a judgment on the burden of proof for showing the exhaustion of trademark rights in a case pitting Coty against Amazon. After having made a test purchase from Amazon of two bottles of a perfume bearing the “JOOP!” trademark on (...)

The French Supreme Court confirms that the incumbent horserace betting operator abused its dominant position (PMU)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 14 October 2020, the French Supreme Court (“Cour de Cassation”) confirmed the Court of Appeals’ finding that horserace-betting company Pari Mutuel Urbaine (“PMU”) abused its dominant position in the market for physical horserace betting by pooling bets with those in the online market. (...)

The Paris Court of Appeal confirms the Competition Authority’s decision ordering a search engine to negotiate with news agencies and press publishers (Google)
Addleshaw Goddard (Paris)
On 8 October 2020, the Paris Court of Appeal rejected Google’s challenge to the French Competition Authority’s ("FCA") decision compelling Google to negotiate "neighbouring rights" with news agencies and press publishers. "Neighbouring rights" include the right to receive payment when a (...)

The Brussels Court of Appeal partially annuls a decision imposing a record fine on a telecommunication company for margin squeeze (Proximus)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 7 October 2020, the Markets Court of the Brussels Court of Appeal (Marktenhof / Cour des marchés) (the Markets Court) partially annulled the decision of 26 May 2009 (the 2009 Decision), for lack of admissible evidence, by which the Belgian Competition Authority (Belgische (...)

The Turkish Administrative Court upholds the fines imposed by the Competition Authority on two electricity sales companies for abuse of dominance and annuls it for a third company (RESCs / AYEDAŞ)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
(1) Introduction In 2018, in its Enerjisa decision, the Turkish Competition Board (“ Board ”) had imposed administrative fines amounting to a total of TRY 143 million on three retail electricity sales companies (namely AYESAŞ, BAŞKENT and TOROSLAR) (together, the “ RESCs ”) and one electricity (...)

The US Court of Appeals for the Federal Circuit reverses a judgment that upheld “skinny labels” and allowed a generic to launch on uses not covered by a patent (GlaxoSmithKline / Teva)
Rutgers University (Camden)
On October 2, 2020, the U.S. Court of Appeals for the Federal Circuit vacated a district court’s judgment in favor of defendant Teva in a case involving “skinny labels.” GlaxoSmithKline LLC v. Teva Pharm. USA, Inc., 976 F.3d 1347 (Fed. Cir. 2020). When a drug can be used to treat multiple (...)

The Albanian Administrative Court of First Instance in Tirana ascertains the abuse of the dominant position by the national football federation (Albanian Football Federation)
Albanian Competition Authority
REPUBLIC OF ALBANIA COMPETITION AUTHORITY* The Competition Authority informs that: Today on 21.09.2020, the Administrative Court of First Instance in Tirana decided: To uphold the Competition’s Commission Decision no. 693, dated 14.05.2020 "To ascertain the abuse of the dominant position of (...)

The EU Court of Justice AG Saugmandsgaard Øe advises dismissing the parties’ challenges to the Commission’s finding of abuse of dominance on the Slovak broadband services market (Slovak Telekom) (Deutsche Telekom)
Van Bael & Bellis (Brussels)
On 9 September 2020, Advocate General (“AG”) Saugmandsgaard Øe issued his opinion in Deutsche Telekom v. European Commission (Case C-152/19) and Slovak Telekom v. European Commission (Case C-165/19) advising the Court of Justice (“ECJ”) to dismiss the parties’ challenges to the Commission’s finding (...)

The EU Court of Justice AG Saugmandsgaard Øe recommends the Bronner legal test to be limited to ’refusals to make available’ (Slovak Telekom) (Deutsche Telekom)
University of Liège
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University of Liège
Advocate General (‘AG’) Saugmandsgaard Øe recommends the European Court of Justice (‘ECJ’) to (i) rule that the test included in the Bronner Judgment – including the indispensability requirement – should only be applied in specific circumstances (i.e., in case of ‘refusals to make available’), and (...)

The UK Supreme Court rules in a license dispute between a software and a telecommunication company and clarifies the English Courts’ approach to FRAND royalty cases (Unwired Planet / Huawei)
Van Bael & Bellis (Brussels)
On 26 August 2020, the UK Supreme Court issued a judgment in a licence dispute involving Standard Essential Patents (“SEPs”) pitting Unwired Planet, a US based patent assertion entity, against Huawei, a Chinese telecommunications company that produces smartphones. Unwired Planet brought an (...)

The US Court of Appeals for the Ninth Circuit rules that there is no antitrust violation in a multinational semiconductor company’s licensing of its standard-essential patents (Qualcomm)
Mintz Levin Cohn Ferris Glovsky and Popeo PC (Boston)
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Mintz Levin Cohn Ferris Glovsky and Popeo PC (Washington)
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Mintz Levin Cohn Ferris Glovsky and Popeo PC (New York)
Ninth Circuit Reverses FTC Win in FTC v. Qualcomm, Finding No Antitrust Violations from Qualcomm’s Licensing of its Standard-Essential Patents* In a reversal that came as no surprise to many observers, on Tuesday, August 11, 2020, a unanimous panel of the U.S. Court of Appeals for the Ninth (...)

The US Court of Appeals for the Ninth Circuit reverses a ruling finding that a semiconductor company abuses its dominant position regarding its standard-essential patents (Qualcomm)
Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (Washington)
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Cleary Gottlieb Steen & Hamilton (New York)
On August 11, 2020, a Ninth Circuit panel reversed the District Court for the Northern District of California’s judgment in FTC v. Qualcomm, Inc. The panel held that Qualcomm’s conduct—(a) refusing to license its standards essential patents (SEPs) to rival chipset manufacturers; (b) refusing to (...)

The US Court of Appeals for the Ninth Circuit overturns a ruling finding that a semiconductor company’s licensing practice abused dominant position (Qualcomm)
Hogan Lovells (Washington)
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Hogan Lovells (Washington)
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United States Senate (Washington)
On 11 August 2020, a panel of the U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”), in a unanimous opinion by Judge Callahan, reversed the U.S. Federal Trade Commission’s (“FTC’s”) win in the district court against Qualcomm Inc. (“Qualcomm”) and upheld Qualcomm’s licensing practices, (...)

The US Court of Appeals for the Ninth Circuit strikes down a sweeping injunction against a semiconductor company and reins in an expansive interpretation of the Sherman Act (Qualcomm)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
On August 11, 2020, the U.S. Court of Appeals for the Ninth Circuit decisively reversed the Federal Trade Commission’s (FTC or Commission) controversial district court win challenging Qualcomm’s licensing practices. In rejecting every aspect of the lower court’s decision, the Ninth Circuit panel (...)

The Italian Supreme Administrative Court refers to the EU Court of Justice questions concerning the interpretation and application of Art. 102 TFEU following an abuse of dominance in the electricity market (Enel)
Bird & Bird (Rome)
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Bird & Bird (Rome)
On 20 July, the Italian Supreme Administrative Court (Consiglio di Stato, CDS) referred to the Court of Justice (CJ) several questions concerning the interpretation and application of Article 102 TFEU. In the context of the dispute following the Italian Competition Authority’s decision to (...)

The EU Court of Justice AG Pitruzzella guides on the method for calculating royalties that may lead to an abuse of dominance of a Belgian collecting society (SABAM)
Van Bael & Bellis (Brussels)
On 16 July 2020, Advocate General (“AG”) Pitruzzella issued an opinion in Case C-327/19, advising the Court of Justice of the European Union (“ECJ”) on whether the method for calculating royalties used by SABAM, the Belgian collecting society, amounts to an abuse of a dominant position under (...)

The German Federal Court of Justice provisionally confirms allegation of a social media company abusing its dominant position (Facebook)
German Competition Authority (Bonn)
Federal Court of Justice provisionally confirms allegation of Facebook abusing dominant position* Facebook uses terms of service that also allow for the processing and use of user data that are collected online outside the Facebook platform. The Bundeskartellamt prohibited Facebook from (...)

The German Federal Court of Justice preliminarily confirms that an online platform abused its dominant position on the national market of social networks (Facebook)
Van Bael & Bellis (Brussels)
On 23 June 2020, the German Federal Court of Justice (“FCJ”), in summary proceedings, preliminarily confirmed the finding of the Federal Cartel Office (“FCO”) that Facebook had abused its dominant position. It overturned the decision of the Higher Regional Court of Düsseldorf that had suspended the (...)

The German Federal Court of Justice confirms abuse of dominance over data collection by an online platform without the user’s explicit consent (Facebook)
Bird & Bird (Dusseldorf)
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Bird & Bird (Dusseldorf)
The Federal Court of Justice (FCJ) rejected Facebook’s application for suspensive effect in connection to its appeal to the Higher Regional Court of Düsseldorf against the decision of the Federal Cartel Office (FCO) prohibiting Facebook from collecting and processing Facebook users’ data generated (...)

The German Federal Court of Justice overturns the Dusseldorf Court of Appeals’ interim decision and finds an online social media platform to have abused its power in collecting data from different sources (Facebook)
Cleary Gottlieb Steen & Hamilton (Cologne)
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Cleary Gottlieb Steen & Hamilton (Cologne)
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Cleary Gottlieb Steen & Hamilton (Cologne)
On June 23, 2020, the Federal Court of Justice (“FCJ”) overturned the Düsseldorf Court of Appeals’ (“DCA”) interim decision and rejected Facebook Inc.’s (“Facebook”) request to suspend the enforceability of the Federal Cartel Office’s (“FCO”) prohibition decision. The FCJ disagreed with the FCO’s (...)

The German Federal Court of Justice rejects an appeal against the prohibition of exclusivity clauses in online sales of event tickets (CTS Eventim)
Van Bael & Bellis (Brussels)
In December 2017, the German Federal Cartel Office (“FCO”) prohibited ticketing services provider CTS Eventim from using exclusivity agreements with event organisers and ticket offices. CTS Eventim had to amend its contractual clauses and allow trading partners to sell at least 20% of their (...)

The Beijing Intellectual Property Court rules that a national audio-video copyright association did not abuse its dominant position (KTV / CAVCA)
King & Wood Mallesons (Beijing)
Antitrust litigations concerning intellectual property rights increased in 2020. Among notable cases, the case of eight KTV v. China Audio Video Copyright Association (“CAVCA”) for its abuse of dominance attracted particular attention. Background In this case, the plaintiffs of eight KTV (...)

The Amsterdam Court of Appeal dismisses a claim that a real estate agency’s self-preferencing strategy is abusive because the competitive position remained unaffected (VBO / NVM / Funda)
European Court of Justice (Luxembourg)
On 26 May 2020, the Amsterdam Court of Appeal (the “Court”) handed down its judgment in the dispute between the real estate agent association VBO (“VBO”) and Funda Real Estate (“Funda”) and the Dutch Association of Real Estate Agents (“NVM”). The Court upheld the judgment of the District Court finding (...)

The Amsterdam Court of Appeal rules that there is no abuse of dominance by one of the largest national real estate agencies in the online housing market (VBO / NVM / Funda)
Leiden Law School (Hague)
In its judgment, on the 26th May 2020, the Amsterdam Court of Appeal (‘the Court’) ruled that there is no abuse of Funda’s dominant position. The Court hereby dismissed the claim which had been filed by VBO Estate Agents in The Netherlands against Funda. This judgment ended a six-year-old dispute (...)

The Amsterdam Court of Appeal finds no abuse of dominance by one of the largest national real estate agencies in its ranking of online advertisements (VBO / NVM / Funda)
Bird & Bird (Amsterdam)
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Bird & Bird (Amsterdam)
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Bird & Bird (The Hague)
On 26 May 2020, the Amsterdam Court of Appeal (“Court”) delivered its judgment in a dispute between the real estate association VBO Makelaars (“VBO”) versus the Dutch Association of Real Estate Agents (“NVM”) over the online real estate platform of Funda Real Estate (“Funda”). The Court assumed that (...)

The Turkish Regional Administrative Court annuls the Competition Authority’s decision that concluded a violation but no fine because the same action and subject had already previously been fined (Mey İçki)
ACTECON (Istanbul)
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ACTECON (Istanbul)
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ACTECON (Istanbul)
The Regional Administrative Court Found the Turkish Competition Authority’s Decision concerning Mey İçki Unlawful: Abuse of the Dominance Should Be Evaluated Separately in terms of Each Product Market!* Introduction The Ankara Regional Administrative Court’s 8th Administrative Chamber (“Regional (...)

The German Federal Court of Justice clarifies obligations of parties in SEP licensing negotiations on FRAND terms (Sisvel / Haier)
Van Bael & Bellis (Brussels)
In its judgment of 5 May 2020, the Federal Court of Justice (“FCJ”) overturned the appeal ruling of the Higher Regional Court of Düsseldorf (the “Düsseldorf Court”) and found that Haier’s mobile telephones and tablets infringed Sisvel’s standard-essential patent (“SEP”) and that Sisvel had not abused (...)

The Italian Court of Cassation rules on the limitation period of antitrust damages claims in two judgments in the telecommunications sector (Uno Communications / Telecom Italia / Vodafone Italia)
White & Case (Milan)
1.- Introduction By judgements issued on the 27th of February, 2020, No. 5381, and on the 3rd of April 2020, No. 7677, the Italian Court of Cassation (Corte di Cassazione) ruled that the antitrust damages claims brought by Uno Communications S.p.A. against Vodafone Italia S.p.A. and Telecom (...)

The Dutch Trade and Industry Appeals Tribunal reverses a decision of the Competition Authority requiring telecom providers to open up their fixed networks in the Netherlands to other providers (KPN / VodafoneZiggo / T-Mobile / Tele2)
Bird & Bird (Amsterdam)
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Bird & Bird (The Hague)
On 17 March 2020, the Dutch Trade and Industry Appeals Tribunal (“CBb”) reversed the 2018 decision of the Authority for Consumers and Markets (“ACM”) requiring telecom providers KPN and VodafoneZiggo to open up their fixed networks in the Netherlands to other providers. In September 2018, the ACM (...)

The Dutch Trade and Industry Appeals Tribunal annuls the Competition Authority decision requiring telecommunications providers to open networks (KPN / VodafoneZiggo / T-Mobile / Tele2)
Van Bael & Bellis (Brussels)
On 17 March 2020, the Dutch Trade and Industry Appeals Tribunal (“Appeals Tribunal”) reversed a decision of the Authority for Consumers & Markets (“ACM”) which required telecommunications provider KPN and cable provider VodafoneZiggo to open their fixed networks to other providers. On 27 (...)

The Dutch Trade and Industry Appeals Tribunal quashes the Competition Authority’s finding of a joint dominance in the retail broadband market (KPN / VodafoneZiggo / T-Mobile / Tele2)
Oxera (London)
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Oxera (London)
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Oxera (Amsterdam)
On 17 March 2020, the Dutch Trade and Industry Appeals Tribunal (CBb) published its long-awaited verdict on the appeal against the Netherlands Authority for Consumers and Markets (ACM) 2018 finding of joint dominance in the Dutch retail broadband market. Why did the CBb rule in favour of the (...)

The Italian Supreme Administrative Court rejects an appeal lodged by a multinational drug company against a previous decision ascertaining it as having abused its dominant position by imposing unfair prices for drugs (Aspen)
Bird & Bird (Rome)
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Bird & Bird (Rome)
On 13 March, the Italian Supreme Administrative Court ("Consiglio di Stato") rejected the appeal lodged by the multinational Aspen Group against the decision of the Regional Administrative Court of Lazio (“TAR”), which fully upheld the decision adopted by the Italian Competition Authority (“ICA”) (...)

The Indian National Company Law Appellate Tribunal upholds the Competition Authority’s decision that a company mandating a party to sign an agreement containing unfair and restrictive clauses is tantamount to abuse of its dominance (Verifone)
Supreme Court of India
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Supreme Court of India
Introduction The National Company Law Appellate Tribunal (NCLAT) by way of its common order dated 13 March 2020 dismissed two appeals preferred by M/s Verifone India Sales Pvt Ltd. (Appellant/ OP 1/ Verifone) against two separate orders passed by the Competition Commission of India (CCI). (...)

The Austrian Supreme Court confirms the lower court’s decision finding that the national public broadcasting company did not abuse its dominant position by increasing its fee for decryption service (ORF)
Reidlinger Schatzmann Rechtsanwälte (Vienna)
1. Introduction On 12 March 2020 the Austrian Supreme Court in competition matters (Oberster Gerichtshof als Kartellobergericht; hereinafter: “Supreme Court”) confirmed a decision by the Higher Regional Court of Vienna in competition matters (Oberlandesgericht Wien als Kartellgericht; (...)

The UK Court of Appeal dismisses the Competition Authority’s appeal against a ruling quashing fines imposed on two pharmaceutical companies for charging excessive and unfair prices for an anti-epilepsy drug (Pfizer / Flynn)
Van Bael & Bellis (Brussels)
On 10 March 2020, the UK’s Court of Appeal dismissed the Competition and Market Authority’s (“CMA”) appeal against a 2018 ruling by the Competition Appeals Tribunal (“CAT”) that quashed the CMA’s 2016 fine imposed on Pfizer and Flynn for charging excessive and unfair prices for phenytoin sodium (an (...)

The UK Court of Appeal upholds the Competition Appeal Tribunal’s quashing of the Competition Authority’s decision against pharmaceutical undertakings who had allegedly abused their dominant position by pricing their epilepsy drug unfairly (Pfizer / Flynn)
White & Case (Brussels)
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White & Case (Brussels)
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White & Case (London)
On 10 March 2020 the Court of Appeal upheld the Competition Appeal Tribunal’s (CAT) quashing of the Competition and Markets Authority’s (CMA) decision that Pfizer and Flynn Pharma (Flynn) had abused their dominant positions in the market by pricing their epilepsy drug unfairly. Among other (...)

The UK Court of Appeal provides guidance on the legal test for excessive and unfair pricing after finding that an undertaking is charged unfairly high prices for phenytoin sodium capsules (Pfizer / Flynn)
Covington & Burling (Brussels)
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Covington & Burling (Brussels)
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Covington & Burling (Brussels)
Under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”), an undertaking may abuse its dominant position by “directly or indirectly imposing unfair purchase or selling prices”. The UK Court of Appeal recently provided guidance regarding the legal test to determine whether (...)

The UK Court of Appeal considers the test for excessive pricing after an undertaking had charged unfairly high prices for phenytoin sodium capsules (Pfizer / Flynn)
Bristows (London)
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Bristows (London)
Introduction In December 2016, the UK’s Competition and Markets Authority (CMA) found that Pfizer and Flynn had charged unfairly high prices for phenytoin sodium capsules, an important anti-epilepsy drug, in breach of competition law. The CMA imposed fines totalling £90 million. Pfizer and Flynn (...)

The UK Court of Appeal seeks to reinstate record fines imposed on pharmaceutical companies for abuse of dominant position through excessive and unfair pricing of an anti-epilepsy drug (Pfizer / Flynn)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
On 10 March 2020 the UK Court of Appeal handed down its hotly anticipated judgment in Flynn Pharma Limited & Anr vs Competition and Markets Authority. The UK Competition and Markets Authority (CMA) was seeking to reinstate record fines totalling £89.4m imposed on pharmaceutical companies (...)

The UK Court of Appeal provides guidance regarding the legal test to determine whether pricing is excessive and unfair in the pharmaceutical market (Pfizer / Flynn)
Covington & Burling (Brussels)
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Covington & Burling (Brussels)
The UK Court of Appeal Clarifies the Legal Test for Excessive Pricing* Under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”), an undertaking may abuse its dominant position by “directly or indirectly imposing unfair purchase or selling prices”. The UK Court of Appeal (...)

The UK Court of Appeal imposes agency discretion in the methodology to establish the unfairness of prices, thereby increasing the burden of proof on companies to avoid a finding of excessive pricing (Pfizer / Flynn)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
The UK Court of Appeal Overturns the CAT & Imposes Agency Discretion on Excessive Price Benchmark* On March 10, 2020, the England and Wales Court of Appeal (CoA) handed down a significant ruling that reintroduces agency discretion in the methodology used to establish the unfairness of (...)

The Indian National Company Law Appellate Tribunal overrules the Competition Authority’s order in an abuse of dominance case in the e-commerce sector (All India Online Vendors Association / Flipkart India)
Vaish Associates Advocates (New Delhi)
NCLAT directs investigation into alleged abuse of dominant position by Flipkart -Quashes earlier CCI order closing the case* By a recent judgment dated 04.03.2020, the Hon’ble National Company Appellate Tribunal (“NCLAT”) has set aside the order dated 06.11.2018 passed by the Competition (...)

The Danish Maritime and Commercial Court finds a medicine distributor guilty of abusing its dominant position (CD Pharma)
Bird & Bird (Copenhagen)
On 3 March 2020, the Danish Maritime and Commercial Court found a medicine distributor, CD Pharma AB, guilty of having abused its dominant position back in 2014. Due to its dominant position, the undertaking in question had a special responsibility not to harm competition – a responsibility that (...)

The Swedish Patent and Market Court of Appeal overturns Competition Authority’s decision and finds that the termination of a contract with a competitor does not constitute an abuse of a dominant position (Svenska Förpacknings och Tidningsinsamlingen)
Swedish Competition Authority (Stockholm)
The termination of a contract with a competitor did not constitute an abuse of a dominant position* Svenska Förpacknings- och Tidningsinsamlingen, FTI, does not have to provide its competitor TMResponsibility, TMR, access to recycling stations. The decision of the Patent and Market Court of (...)

The US Court of Appeals for the Seventh Circuit finds that the District Court should not have dismissed a monopolization and tying arrangement suit in the telecom sector (Comcast / Viamedia)
Hausfeld (New York)
On February 24th, a Seventh Circuit Court of Appeals panel ruled unanimously that a District Court should not have dismissed a monopolization and tying arrangement suit brought against Comcast by Viamedia, a supplier of advertising services to cable companies and other television content (...)

The EU General Court hears an appeal against an abuse of dominance decision in online comparison shopping services (Google Shopping)
Catholic University of Louvain
Background On 27 June 2017, the European Commission imposed a record fine of 2.42 billion euros to Google for abuse of dominant position under Article 102 TFEU consisting in self-favouring its own Comparison Shopping Service (“CSS”) by displaying it more prominently and under enriched features (...)

The EU General Court hears an appeal following an abuse of dominance decision involving online comparison shopping services (Google Shopping)
Hausfeld (London)
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Hausfeld (London)
Introduction From 12-14 February 2020, the European Union’s General Court (the “General Court”) heard Google’s appeal of the European Commission’s 27 June 2017 abuse of dominance decision pursuant to Article 102 TFEU (the “Decision”) involving on-line comparison shopping services (“CSSs”). A central (...)

The EU Court of Justice clarifies the Commission’s investigative powers regarding dawn raids (České dráhy)
Zepos & Yannopoulos (Athens)
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Zepos & Yannopoulos (Athens)
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Zepos & Yannopoulos (Athens)
Recent judgements by Court of Justice of the EU provide important clarifications regarding the European Commission’s powers and obligations when conducting dawn raids. On 30 January 2020, the Court of Justice handed down a judgment dismissing two appeals by České dráhy, a.s. against General Court (...)

The EU Court of Justice dismisses the appeals against the Commission’s decisions in the case of alleged predatory practices by the Czech railway incumbent (České dráhy)
Ashurst (Brussels)
On 30 January 2020, the European Court of Justice dismissed the appeals in joined cases C-538/18 P and C-539/18 P brought by Czech national rail carrier České dráhy, which sought to set aside the judgments of the General Court in cases T‑325/16 and T‑621/16 upholding the European Commission’s (...)

The Turkish Administrative Court annuls a Competition Authority’s decision assessing excessive pricing in the online market and provides guidance on the standard of proof to be followed by the Authority (Sahibinden.com)
ACTECON (Istanbul)
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ACTECON (Istanbul)
The standard of proof plays a significant role during the process of the investigations performed within the framework of the competition law. However, no explicit provision regarding the standard of proof which shall be taken as basis in the preliminary and full-fledged investigations carried (...)

The Turkish Administrative Court annuls the fining decision of the Competition Authority because it failed to meet the required standards for establishing a competition law infringement based on excessive pricing (Sahibinden.com)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
This case note analyses Ankara 6th Administrative Court’s (the “Administrative Court”) annulment judgment (18.12.2019; 2019/946 E., 2019/2625 K.) through which the Administrative Court reviewed the Turkish Competition Board’s (the “Board”) decision dated 01.10.2018 and numbered 18-36/584-285, (...)

The Paris Court of Appeal clarifies the relevant test for characterizing an excessive price in the market of waste disposal for hospitals and clinics in Corsica (Sanicorse)
Dechert (Paris)
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Dechert (Paris)
On 14 November 2019, the Paris Court of Appeal (the “Court”) quashed a decision of the French Competition Authority (“FCA”) of 20 September 2018 in which the latter had imposed € 199 000 fine on Sanicorse for having abused its dominant position on the market for infectious clinical waste (“ICW”) (...)

The Italian Supreme Court rules on the abuse of a dominant market position of a company in the aviation sector and reinstates the criteria needed to determine the relevant market (Ryanair)
Accademia del Lusso
The facts of this case date back to 2007, when Ryanair decided to exclude all intermediaries from relations with its customers and directed all consumer internet traffic to its website, where other services were also offered by operators and commercial partners of the company, which therefore (...)

The Italian Supreme Court rules that an airline company abused its dominant position by refusing to grant online travel agencies the right to intermediate its tickets by accessing its databases and procedures for flight reservations (Ryanair)
Bird & Bird (Rome)
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Bird & Bird (Rome)
On 12 November, the Italian Supreme Court brought to an end a multi-jurisdictional dispute which began in 2008, related to the Ryanair’s refusal to grant online travel agencies ("OTAs") the right to intermediate its tickets by accessing its databases and procedures for flight reservations. On 4 (...)

The UK Competition Appeal Tribunal upholds a fine totaling £50 million to the national post office for abusing its dominant position by announcing price changes (Royal Mail / Whistl)
Ashurst (London)
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Ashurst (London)
On 12 November 2019, the UK Competition Appeal Tribunal ("CAT") upheld Ofcom’s decision to fine Royal Mail £50 million for abusing a dominant position by announcing price changes. Royal Mail has announced that it is seeking permission to appeal to the Court of Appeal. WHAT YOU NEED TO KNOW - KEY (...)

The UK Competition Appeal Tribunal upholds the Ofcom’s fine against a company for price discrimination (Royal Mail / Whistl)
Van Bael & Bellis (Brussels)
The UK’s Competition Appeal Tribunal upholds the Ofcom’s record £50 million fine against Royal Mail for price discrimination against Whistl, a competitor in the market for the processing of bulk mail.On 12 November 2019, the UK’s Competition Appeal Tribunal (CAT) upheld the UK communication (...)

The UK Competition Appeal Tribunal upholds the Ofcom’s decision for abuse of dominance and discriminatory pricing strategy in the mail delivery service market (Royal Mail / Whistl)
Bird & Bird (London)
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Bird & Bird (London)
On 12 November 2019, the Competition Appeal Tribunal ("Tribunal") upheld Ofcom’s decision against Royal Mail Plc (Royal Mail), finding Royal Mail’s pricing strategy in relation to bulk mail delivery services to be discriminatory and an abuse of dominance. Royal Mail first announced the (...)

The UK Competition Appeal Tribunal considers what constitutes abusive conduct and the use of expert economic advice and clarifies what the "as-efficient competitor test" entails (Royal Mail / Whistl)
Latham & Watkins (London)
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Latham & Watkins (London)
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Latham & Watkins (London)
UK COMPETITION APPEAL TRIBUNAL JUDGMENT: PUSHING THE ENVELOPE ON ABUSE OF DOMINANCE* The CAT’s Royal Mail v Ofcom judgment considers what constitutes abusive conduct, the “as-efficient competitor” test, and the use of expert economic advice. On 12 November 2019, the UK Competition Appeal (...)

The Italian Regional Administrative Court of Lazio upholds the Competition Authority decision which fined a company for abusing its dominant position in the electricity market (Enel)
Bird & Bird (Rome)
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Bird & Bird (Rome)
On 17 October 2019, the Regional Administrative Court of Lazio (“TAR”) issued its judgment on the appeal lodged by Enel Group against the decision of the Italian Competition Authority (the “ICA”) issued on 20 December 2018. The ICA had fined the company over EUR 93 million for abusing its dominant (...)

The EU Commission imposes interim measures on a chipmaking company suspected of having put in place contractual restrictions to exclude its competitors from the market (Broadcom)
Orrick, Herrington & Sutcliffe (Paris)
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Orrick, Herrington & Sutcliffe (Paris)
On June 26, 2019, the EU Commission opened a formal investigation into U.S. chipmaker Broadcom’s alleged abuse of dominance. In a rather unexpected move, the EU Commission informed the company, on the same day, of its intention to impose interim measures, a long-forgotten tool. Broadcom, which (...)

The Italian Regional Administrative Court of Lazio rejects the appeal against abuse of dominance decision in the markets for the management of copyrights (SIAE)
Bird & Bird (Rome)
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Bird & Bird (Rome)
On 26 September 2019, the Regional Administrative Court of Lazio (“TAR”) rejected the appeal lodged by the Italian Authors’ and Publishers’ Association (the “SIAE”) against the decision of the Italian Competition Authority (the “ICA”) taken on 25 September 2018. In this decision, the Authority had (...)

The Danish Competition Appeals Tribunal confirms that a company abuses its dominance by using conditional rebates and exclusivity provisions in the payment card sector (Teller)
Danish Competition and Consumer Authority (Copenhagen)
The Danish Competition Appeals Tribunal confirms that Teller (now Nets) abused its dominant position by using rebates conditional on exclusivity and exclusivity provisions* The Danish Competition Appeals Tribunal (DCAT) confirmed the 18th of September 2019 the ruling by the Danish Competition (...)

The US Court of Appeals for the Second Circuit nixes a $15M antitrust jury verdict in favor of an airline company against a travel-planning giant (US Airways / Sabre)
Hausfeld (New York)
In the first two-sided market case to be decided by a court of appeals since the Supreme Court issued its American Express ruling (“Amex”) in June 2018, a Second Circuit Panel in September nixed a $15 million antitrust jury verdict in favor of US Airways against travel-planning giant Sabre (...)

The Paris Court of Appeal upholds the decision of the Competition Authority to fine a pharma company for abuse of dominance (Jansson-Cilag / Johnson & Johnson)
Dechert (Paris)
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Dechert (Paris)
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Dechert (New York)
More particularly, the Court affirmed the FCA’s conclusion that Janssen infringed competition law by, on the one hand, disparaging competing fentanyl specialties towards health professionals, emphasizing the risks associated with a switch from Durogesic© to a generic version and, on the other (...)

The US Court of Appeals for the Third Circuit affirms bench trial’s decision in a rare price discrimination suit (Spartan Concrete Products / Argos USVI)
Hausfeld (New York)
Robinson-Patman Act decisions are rare. This often is because legitimate complaints against a supplier providing favorable pricing to a complaining customer’s competitors either are settled out of court or prior to a decision on the merits. So it is of interest when a price discrimination suit (...)

The US Court of Appeals for the Third Circuit affirms directed verdict following a rare price discrimination trial (Spartan Concrete Products / Argos USVI)
Jones Day (Washington)
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Jones Day (Cleveland)
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Jones Day (Washington)
Failure to show antitrust injury proved fatal to price discrimination claims as the Third Circuit affirmed a directed verdict in favor of cement company, Argos USVI, in a case brought by its customer, ready-mix concrete company Spartan Concrete Products ("Spartan"). This decision highlights (...)

The Swedish Court of Appeal confirms the dismissal of the Competition Authority’s action against a stock exchange company for alleged abuse of dominant position (Nasdaq)
Van Bael & Bellis (Brussels)
On 28 June 2019, the Swedish Patent and Market Court of Appeal (the “Appeal Court”) upheld a ruling of the Swedish Patent and Market Court that rejected an action brought by the Swedish Competition Authority (Konkurrensverket or “KKV”) against Nasdaq Stockholm Aktiebolag and several affiliated (...)

The Rotterdam District Court annuls a €41 million fine imposed by the Dutch Competition Authority on a railway operator for allegedly abusing its dominant position (Nederlandse Spoorwegen)
Bird & Bird (The Hague)
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Bird & Bird (Amsterdam)
ABUSE OF DOMINANCE FINE OF € 41 MILLION FOR DUTCH RAILWAY OPERATOR ANNULED* Introduction The Authority for Consumers and Markets (“ACM“, the Dutch competition authority) was in 2017 – after years of silence – finally able to fine an undertaking for abuse of dominance. A heavy fine of almost € 41 (...)

The Rotterdam District Court annuls a €41 million fine imposed on a rail transport incumbent for allegedly abusing its dominant position (Nederlandse Spoorwegen)
Bird & Bird (The Hague)
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Bird & Bird (Amsterdam)
On 27 June 2019 the District Court of Rotterdam annulled the decision of the Authority for Consumers and Markets ("ACM", the Dutch competition authority) to impose a fine of € 41 million on Dutch rail transport incumbent N.V. Nederlandse Spoorwegen ("NS") for abusing its dominant position (100%) (...)

The Czech Republic Supreme Court confirms that invoking trademark rights to prevent parallel imports can be an abuse of dominant position (Fiskars / Mountfield)
Skils (Prague)
On 29 May 2019, the Supreme Court (SC) partially granted an extraordinary appealed lodged by Mountfield against the previous judgment of the High Court in Prague of 23 May 2017 (Ref.No. 3 Cmo 132/2016) in a dispute with Fiskars concerning an alleged violation of Firskars’ rights to trademarks (...)

The US District Court for the Northern District of California finds that a semiconductor company’s "no license, no chips" program violates antitrust laws (Qualcomm)
Ropes & Gray (New York)
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Ropes & Gray (New York)
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U.S. Attorney’s Office – District of Massachusetts
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On May 21, 2019, following a full trial on the merits, Judge Koh of the Northern District of California issued a 233-page opinion in a closely watched case (...)

The Brussels Court of Appeal asks the EU Commission to provide advice and information regarding the tariffs for concerts and music festivals of a copyright collecting society (SABAM)
Simmons & Simmons (Brussels)
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Simmons & Simmons (Brussels)
On 10 May 2019, by interim judgment, the Brussels Court of Appeal asked the European Commission to provide advice and information regarding the tariffs for concerts and music festivals of SABAM – the Belgian copyright collecting society – in light of the prohibition to abuse a dominant position (...)

The Belgian Markets Court rejects an appeal lodged by an undertaking against the Competition Authority’s decision to reject its request for interim measures decision and explains limits of its jurisdiction (The Great Circle)
Van Bael & Bellis (Brussels)
On 8 May 2019, the Markets Court of the Brussels Court of Appeal rejected as inadmissible the appeal lodged by The Great Circle against the decision of the Belgian Competition Authority (“BCA”) to reject its request for interim measures against the Royal Meteorological Institute of Belgium (...)

The Hungarian Supreme Court annuls the Competition Authority’s decision which fined a company for having applied a discount scheme leading to dual pricing on the contact lenses market (Alcon)
Bird & Bird (Budapest)
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Bird & Bird (Budapest)
The Hungarian Supreme Court ("Kúria") annulled on 10 April 2019 a decision of the Hungarian Competition Authority ("GVH") which had imposed a € 321,000 fine on Alcon Hungária Kft. and Alcon Services AG Hungarian branch (jointly, the "Alcon Companies") for having applied a discount scheme leading (...)

The Turkish Competition Authority fines a company for resale price maintenance after the Council of State annulled its first decision finding no infringement regarding prepaid card prices (Turkcell II)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
The Turkish Competition Board published its reasoned decision on an additional investigation on whether Turkcell İletişim Hizmetleri A.Ş. has violated the Law No. 4054 on the Protection of Competition through resale price maintenance and exclusivity practices (19-03/23-10; 10.01.2019). The (...)

The Spanish Supreme Court confirms the annulment of a €120 million fine imposed by the Competition Authority against three mobile operators for abuse of dominance in wholesale markets for termination of SMS and MMS (Telefónica / Vodafone / Orange)
Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (Brussels)
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European Court of Justice (Luxembourg)
In three judgments delivered in December 2018 and January 2019, the Spanish Supreme Court confirmed the annulment of fines amounting to a total of €120 million imposed on the three main telecoms operators in Spain (i.e., Telefónica, Vodafone and Orange) for abuse of dominance in the wholesale (...)

The Russian Presidium of the Supreme Court considers a competition case for the first time, granting the appeal of Europe’s largest port operator concerning sanctions for abuse of dominance (Novorossiysk Commercial Sea Port)
ALRUD (Moscow)
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ALRUD (Moscow)
THE FIRST COMPETITION CASE IN THE PRESIDIUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION – RESOLUTION OF THE DISPUTE BETWEEN THE FAS AND THE LARGEST STEVEDORE* Background and main problems Novorossiysk Commercial Sea Port PJSC (“NCSP”) is one of the Europe’s largest port operator in terms of (...)

The US District Court for the Northern District of California denies motion for summary judgment that a company’s standard-essential patent licensing practices breached its FRAND obligations (ASUS / InterDigital)
Hogan Lovells (Washington)
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Hogan Lovells (Washington)
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Baker McKenzie (Washington)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In a decision published in redacted form, Judge Beth Labson Freeman of the Northern District of California denied ASUSTek Computer Inc.’s and ASUS Computer (...)

The EU General Court slightly reduces the fine in a case of abuse of dominance in the telecom sector to account for the Commission’s failure to establish exclusionary effects over a limited period (Slovak Telekom)
Van Bael & Bellis (Brussels)
On 13 December 2018, the General Court (the “GC”) issued a judgment upholding in large part an October 2014 decision of the European Commission (the “Commission”) against Slovak Telekom, in which it found that Slovak Telekom had abused its dominant position by engaging in a constructive refusal to (...)

The Danish Competition Appeals Tribunal upholds the decision fining a pharmaceutical distributor for excessive pricing (CD Pharma)
Van Bael & Bellis (Brussels)
On 29 November 2018, the Danish Competition Appeals Tribunal upheld a 31 January 2018 decision of the Danish Competition Authority (“DCA”) finding that CD Pharma abused its dominant position on the Danish market by charging excessive prices for the sale of oxytocin, a hormone that acts as a (...)

The UK Court of Appeal upholds a decision qualifying an essential patent offer to be FRAND (Unwired Planet / Huawei)
Jindal Global University (Sonipat)
UK COURT OF APPEAL UPHOLDS FRAND INJUNCTION* Last week, the UK Court of Appeal upheld the findings of the High Court in an important case regarding standard essential patents (SEPs). Of particular significance, the Court of Appeal upheld the finding that the defendant, an implementer of SEPs, (...)

The Turkish Court of Ankara annuls a decision of the Competition Authority which contains controversial issues such as market power provided by digital platforms and excessive pricing (Sahibinden.com)
Erdem & Erdem (Istanbul)
Introduction Decision numbered 2019/946 E., 2019/2625 K. of the 6 th Administrative Court of Ankara (“Annulment Decision”) is critical since it has annulled the Competition Authority's (“Authority”) Sahibinden.com Decision numbered 18-36/584-285 and dated 01.10.2018 (“Sahibinden Decision”) 1 , (...)

The Indian National Company Law Appellate Tribunal reverses the Competition Authority’s decision which penalized a company for imposing anti-competitive vertical restraints in the manufacturing vehicle sector (Hyundai)
Vaish Associates Advocates (New Delhi)
NCLAT quashes CCI order punishing Hyundai for Resale Price Maintenance and Tying-in* The National Company Appellate Tribunal (“NCLAT/ Tribunal ”) by way of an order dated August 19, 2018 , has set aside the CCI Order dated June 14, 2017 against Hyundai Motors India Ltd. (“Hyundai”) which (...)

The Slovenian Administrative Court confirms a substantial part of a decision in a case related to abuse of dominant position (Telekom Slovenije)
Fatur Law Firm (Ljubljana)
INTRODUCTION On 9 January 2018, the Administrative Court of the Republic of Slovenia (hereinafter referred to as the Court) ruled in case I U 423/2015-48, brought by Telekom Slovenije against the Slovenian Competition Protection Agency’s (hereinafter referred to as SCPA) decision no. (...)

The US Court of Appeals for the Third Circuit finds that a medical device company conspired to deny insurance coverage for telemetry monitors (LifeWatch Services / Highmark)
Hausfeld (Washington)
In LifeWatch Services Inc. v. Highmark Inc., the Third Circuit determined that a medical device company had plausibly alleged a conspiracy among Blue Cross Blue Shield health insurance companies to deny their insured coverage for telemetry monitors. The decision reversed a district court ruling (...)

The Canadian Supreme Court dismisses an appeal and upholds the Court of Appeal’s order requiring a professional association to stop restricting its members’ use of real estate data (Toronto Real Estate Board)
Canadian Competition Bureau (Gatineau)
Court order upheld requiring TREB to stop restricting its members’ use of real estate data* The Competition Bureau today welcomes the Supreme Court of Canada’s (SCC) dismissal of the Toronto Real Estate Board’s (TREB) application seeking leave to appeal a December 2017 decision from the Federal (...)

The Austrian Supreme Court confirms that charging different prices for tickets booked via a global distribution system depending on the location of the customer/travel is abusive (Lufthansa)
Reidlinger Schatzmann Rechtsanwälte (Vienna)
Introduction On 17 July 2018 the Austrian Supreme Court in competition matters (Oberster Gerichtshof als Kartellobergericht; hereinafter: “Supreme Court”) confirmed a cease and desist order prohibiting Lufthansa from abusing its dominant position by charging different ticket prices based on the (...)

The UK Competition Appeal Tribunal announces its provisional judgment in an appeal against the Competition Authority’s infringement decision in an excessive price case (Pfizer / Flynn)
White & Case (Brussels)
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White & Case (Brussels)
I. Introduction In the last couple of years, there has been a trend for antitrust watchdogs around the world to investigate excessive pricing, especially in the pharmaceutical sector. Last year, the European Commission opened its first investigation into excessive pricing in the pharmaceutical (...)

The UK Competition Appeal Tribunal partly annuls the Competition Authority’s decision that pharmaceutical companies abused their dominant position by setting excessive and unfair prices for an epilepsy drug (Pfizer / Flynn)
Norton Rose Fulbright (London)
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Norton Rose Fulbright (Brussels)
This article has been nominated for the 2019 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 7 June 2018, the Competition Appeal Tribunal (CAT) set aside in part the 2016 decision of the Competition and Markets Authority (CMA) that Pfizer and Flynn (...)

The UK Competition Appeal Tribunal finds an incorrect application of the legal test for dominance and quashes the Competition Authority’s record fines imposed on two pharmaceutical companies for charging excessive prices for an anti-epilepsy drug (Pfizer / Flynn)
Rosenblatt (London)
EXCESSIVE PRICE? COMPARED TO WHAT?* On 7 June 2017, the Competition Appeal Tribunal (“CAT”) set aside parts of the Competition & Market Authority’s (“CMA”) decision in relation to the CMA’s finding that Pfizer and Flynn charged excessive and unfair prices for phenytoin sodium capsules and (...)

The UK Competition Appeal Tribunal partially sets aside the Competition Authority’s decision that fined two undertakings nearly £90 million for charging unfairly high and excessive prices for anti-epilepsy drugs (Pfizer / Flynn)
Freshfields Bruckhaus Deringer (London)
On 7 June 2018, the UK’s Competition Appeal Tribunal (CAT) partially set aside the Competition and Market Authority’s (CMA’s) decision fining Pfizer and Flynn nearly £90 million for charging unfairly high, or excessive, prices for phenytoin sodium capsules (an anti-epilepsy drug) in breach of EU (...)

The Higher Commercial Court of Ukraine confirms a fine on a company for exploitative practices in certain national airports (Lukoil)
Asters (Kiev)
Headnote: In December 2014, Ukraine International Airlines PJSC (UIA) submitted a complaint against Lukoil Aviation Ukraine LLC (Lukoil) to the Antimonopoly Committee of Ukraine (AMC). Having reviewed the complaint and conducted relevant investigation, the AMC imposed fine on Lukoil in the (...)

The Australian Federal Court dismisses an appeal by the Competition Authority against a judgment establishing market power in the pharmaceutical sector (Pfizer)
Herbert Smith Freehills (Melbourne)
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Herbert Smith Freehills (Melbourne)
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Herbert Smith Freehills (Sydney)
The Full Court of the Federal Court of Australia has dismissed an appeal by the ACCC against an earlier judgment in relation to pharmaceutical company Pfizer. While the Full Court upheld the single judge decision that Pfizer had not misused its market power or engaged in prohibited (...)

The EU Court of Justice confirms that price discrimination is not itself an abuse of dominance in breach of competition law unless the discriminatory conduct is capable of producing a distortion of competition for the trading party (MEO / Serviços de Comunicações e Multimédia)
Freshfields Bruckhaus Deringer (London)
On 19 April 2018, the EU’s Court of Justice delivered its judgment in the MEO case, the latest in a recent line of rulings endorsing an effects-based analysis for abuse of dominance cases. EU competition law requires dominant companies not to discriminate between different customers or (...)

The Spanish Supreme Court orders restarting the investigation of a complaint about abuse of dominant position (Oracle)
Callol, Coca & Asociados (Madrid)
On 26 February 2013, Hewlett Packard and Hewlett Packard Española, S.L. (jointly, HP) filed a complaint against Oracle Corporation and Oracle Ibérica, S.R.L. (jointly, Oracle) before the NMCC denouncing restrictive practices of competition in the field of relational database management systems, (...)

The US Court of Appeals for the Third Circuit finds that the entry of ride-sharing firms into the local taxi market increased rather than decreased competition (Philadelphia Taxi Association / Uber)
Secretariat Economists (Washington)
Third Circuit Rules in Uber’s Favor over Philadelphia Taxi Association* In a recent decision, the Third Circuit upheld a November 2016 district court decision to dismiss a complaint by the Philadelphia Taxi Association and 80 taxi companies, finding that there was no violation of antitrust (...)

The Amsterdam District Court issues a verdict in a long-running abuse of dominance case involving the largest national property website (Funda)
Oxera (Oxford)
In March 2018 the Court of Amsterdam issued a verdict in a long-running abuse of dominance case involving funda, the largest property website in the Netherlands. The Court found funda to be dominant, but did not consider the company’s discriminatory listing of rival estate agents to be (...)

The Polish Supreme Court examines a case of non-compliance with a decision of the Competition Authority finding an abuse of dominant position (PKP Cargo)
Utrecht University
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Affre i Wspólnicy (Warsaw)
In the judgement of 7 March 2018 (III SK 6/17), the Polish Supreme Court (“SC”) examined the case of non-compliance with the decision of the President of the Office of Competition and Consumer Protection (“NCA”) on the abuse of a dominant position by PKP Cargo, Poland’s largest railway freight (...)

The Moldovan Supreme Court of Justice quashes the infringement decision of the Competition Authority concerning refusal to deal in the airport services market (Avia Invest)
University of Macau - Faculty of Law (Macau)
On 21 February 2018, the Supreme Court of Justice (SCJ) of the Republic of Moldova has quashed the decision issued by the Competition Council (CC) in a case concerning the alleged refusal to deal on the market for lease of commercial premises at the Chisinau International Airport (KIV). SRL (...)

The Latvian Supreme Court overturns a decision annulling the Competition Authority’s decision to fine an author associate in a royalty payment case (AKKA / LAA)
Latvian Supreme Court (Riga)
Dispute between AKKA/LAA and the Competition Council on the penalties imposed on the association is referred for re-examination* On 6 February, the Department of Administrative Cases of the Supreme Court annulled the judgment of the Administrative Regional Court in the case of dispute between (...)

The Spanish Supreme Court rejects the allegations of abuse of dominance by a postal incumbent for lack of evidence (Correos)
Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
In 2014, UNIPOST, S.A. (Unipost) filed a complaint before the NMCC against Sociedad Estatal de Correos y Telegrafos, S.A., (Correos) denouncing that Correos was able to offer discounts to large customers, well above the discounts offered by Unipost and other competitors for similar services, (...)

The Cairo Economic Court upholds the recommendation of the Egyptian Competition Authority and fines a TV broadcasting company for abusive bundling of international football events (Nasser Al-Khulaifi / beIN Media)
Fingleton (London)
The Cairo Economic Court upholds the recommendation of the Egyptian Competition Agency and fines a TV broadcasting company for abusive bundling of international football events (Nasser Al-Khulaifi / beIN Media) On 29th January 2018 the Cairo Economic Court found that beIN had abused its (...)

The Malaysian Competition Appeal Tribunal upholds a Competition Authority’s decision in a case of abuse of dominance in the provision and management of online foreign workers permit renewals (My E.G)
Wong Partners (Baker McKenzie Kuala Lumpur)
On 28 December 2017, the Competition Appeal Tribunal (CAT) upheld the Malaysian Competition Commission’s (MyCC) decision on 24 June 2016 that My E.G. Services Berhad (MyEG) and its wholly-owned subsidiary, My E.G Commerce Sdn. Bhd. (MyEG Commerce) have abused their dominant position in the (...)

The EU Court of Justice prohibits selective distributors from selling luxury products on third-party online platforms (Coty Germany / Parfümerie Akzente)
Kyriakides Georgopoulos (Athens)
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Kyriakides Georgopoulos (Athens)
On 6 December 2017, the Court of Justice of the European Union handed down its Judgment on the awaited Coty Germany v Akzente case. The case concerned whether a supplier of luxury cosmetics, operating a selective distribution system for its products, may validly prohibit its authorized (...)

The Moldovan Supreme Court of Justice quashes a Competition Authority’s decision regarding refusal to supply in the context of public procurement of pharmaceutical products (Esculap-Farm)
University of Macau - Faculty of Law (Macau)
On 25 October 2017 the Supreme Court of Justice (SCJ) of the Republic of Moldova has quashed the decision issued by the Competition Council (CC) in a case concerning the refusal to supply pharmaceutical products purchased in the context of public procurement by public hospitals and other public (...)

The Moldovan Supreme Court of Justice upholds the NCA decision concerning refusal to supply in the context of public procurement of pharmaceutical products (Medeferent)
University of Macau - Faculty of Law (Macau)
On 4 October 2017 the Supreme Court of Justice (SCJ) of the Republic of Moldova has upheld the decision issued by the Competition Council (CC) in a case concerning the refusal to supply pharmaceutical products purchased in the context of public procurement by public hospitals and other public (...)

The EU Commission fines the incumbent Lithuanian railway company €28 million for abuse of dominance (Baltic Rail)
DG COMP (Brussels)
On 2 October 2017 the European Commission adopted its decision in the Baltic Rail case finding that the Lithuanian railways company, Lietuvos geležinkeliai (’LG’) abused its dominant position. The extraordinary circumstances of the case prompted one commentator to wonder whether this is ’the most (...)

The EU Court of Justice accepts an alternative to the United Brands test to establish excessive pricing (AKKA / LAA)
Giannino SI (Monserrato)
On replying to the preliminary questions referred by the Supreme Court of Latvia (SCL), in AKKA v LAA the CJEU has accepted a methodology other than the two-limb United Brands test to establish an excessive pricing practice. The CJEU also clarifies the criteria to set the amount of the fine (...)

The EU Court of Justice quashes a judgment of the General Court that upheld a fine of €1.06 billion for an abuse of dominance due to implementing loyalty rebates based on exclusivity agreements (Intel)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
On September 6, 2017 ,the Court of Justice of the European Union (CJEU) quashed the 2014 judgment of the General Court (GC) that upheld a fine of €1.06 billion ($1.5 billion) on Intel Corporation Inc. (Intel) for abusing a dominant market position by implementing loyalty rebates based on (...)

The EU Court of Justice renders its judgment in a case regarding loyalty rebates granted by dominant companies (Intel)
Baker Botts (Brussels)
An alternative view on accuracy and administrability Introduction In its judgment in Intel of 6 September 2017, the Court of Justice of the European Union (“CJEU”) rejected the notion that particular loyalty rebates granted by a dominant company are subject to a per se illegality standard of (...)

The EU Court of Justice issues a landmark judgment on the legal treatment of fidelity rebates granted by dominant companies (Intel)
Van Bael & Bellis (Brussels)
On 6 September 2017, the Court of Justice of the European Union (“ECJ”) issued its long-awaited judgment in the Intel case (Case C-413/14 P), setting aside the General Court’s (“GC”) judgment. The GC must now re-assess the legality of the Commission’s decision in light of the ECJ’s ruling. Intel was (...)

The EU Court of Justice reverses the General Court’s decision in an abuse of dominance case against a Big Tech company in the market for processors and rules that rebates should be judged under the rule of reason (Intel)
Compass Lexecon (Brussels)
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The Graduate Institute for International and Development Studies (Geneva)
Roundtable Discussion on the ECJ ruling in Intel* On 6 September 2017, the European Court of Justice (“ECJ”) issued a landmark judgment where it set aside the judgment of the General Court (“GC”) in the highly debated Intel matter. This judgment is of particular significance because it provides (...)

The EU Court of Justice annuls the General Court’s ruling that upheld the fine imposed by the Commission for an abuse of dominance (Intel)
Jones Day (Brussels)
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Jones Day (Brussels)
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Jones Day (Frankfurt)
What happened? The European Court of Justice ("ECJ") set aside a General Court ruling that had upheld a €1.06 billion fine imposed by the European Commission on Intel for abusing its dominant position in the market for x86 central processing units ("CPUs"). Background In its 2009 decision, (...)

The EU Court of Justice refers a case back to the General Court for re-examination (Intel)
Norton Rose Fulbright (Brussels)
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Norton Rose Fulbright (London)
Major victory for Intel as CJEU sends case back to General Court for re-examination* On 6 September, the EU’s highest court, the Court of Justice (CJEU), released its long-awaited decision in the Intel case, in which the Commission imposed a fine of €1.06 billion – at the time, the largest fine (...)

The EU Court of Justice endorses an effects-based assessment of rebates (Intel)
White & Case (Brussels)
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White & Case (Brussels)
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White & Case (Brussels)
This article has been nominated for the 2018 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 6 September 2017, the Court of Justice of the European Union ("CJEU" or "Court") essentially held in Intel that the European Commission ("Commission") cannot (...)

The EU Court of Justice revisits forty years of case law on when a dominant company’s rebate scheme may be abusive (Intel)
Skadden, Arps, Slate, Meagher & Flom (London)
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Baker McKenzie (London)
In its ruling on the European Commission’s 500 page Intel decision, in a crisp 150 paragraphs, the EU Court of Justice (the Court) revisited forty years of jurisprudence on when a dominant company’s rebate scheme may be abusive. Though no final decision for Intel, the case marks a potentially (...)

The EU Court of Justice modernizes abuse of dominance notion (Intel)
Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (London)
(“CJEU”) set aside General Court’s 2014 Intel judgment, upholding a European Commission (the “Commission”) decision fining Intel €1.06 billion for abuse of dominance through exclusivity rebates . The CJEU held that the General Court had erred in failing to examine all of Intel’s arguments calling (...)

The EU Court of Justice defines the conditions for the legality of discounts made by dominant companies (Intel)
Callol, Coca & Asociados (Madrid)
The European Court of Justice (ECJ) published its judgement in a highly expected case, largely due to the huge administrative fine of € 1,060 million set by the EC in 2009, but mostly because of its relevance in a very important area of commerce: the legal treatment of discounts by dominant (...)

The EU Court of Justice rules that exclusivity rebates cannot be presumed to be an abuse of dominance (Intel)
Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (Berlin)
Exclusivity rebates are used in markets ranging from postal deliveries through ice cream to computer processors and are normally regarded as beneficial to consumers. However, when applied by dominant companies such rebates could potentially entrench an existing market position and have been (...)

The EU Court of Justice refers back to the General Court a case for it to examine the factual and economic evidence and to establish whether the rebates at issue are capable of restricting competition (Intel)
Herbert Smith Freehills (London)
In its long awaited judgment on Intel’s appeal against the General Court’s ruling that its rebate scheme was inherently anticompetitive and that there was no need to consider the circumstances of the case, the Court of Justice of the European Union (CJEU) has today referred the case back to the (...)

The Italian Regional Administrative Court for Latium upholds the infringement decision made by the Competition Authority against a pharmaceutical laboratory for excessive pricing (Aspen)
Giannino SI (Monserrato)
By the judgement handed down in Aspen v AGCM , the Regional Administrative Court of Latium (the Court) has recently determined the appeal lodged by a South African manufacturer of generic drugs, Aspen, against the 2016 decision made by Italian Competition Authority (ICA), rejected all the (...)

The Beijing Intellectual Property Court finds an ad-block app breaching unfair competition provisions (Feihu / Sohu / Xiaoyi)
University of Melbourne
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Hogan Lovells (Beijing)
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China Competition Bulletin (Beijing)
On 2 April 2017, the Beijing Intellectual Property Court upheld the first-instance judgement relating to an unfair competition claim brought by Feihu Information Technology Tianjin Company and Sohu against Beijing Xiaoyi Interaction Network Technology. Xiaoyi operated an app that could play 30 (...)

The US District Court of Appeals for the Tenth Circuit rejects claims challenging a medical-surgical distributor’s discount scheme (Suture Express / Cardinal Health / Owens & Micro)
Hausfeld (New York)
Cases in which vertical restraints are challenged under Section 1 of the Sherman Act often require proof that the defendant has “market power”—the power “to force a purchaser to do something that he would not do in a competitive market,” which usually takes the form of a seller’s ability “to raise (...)

The US Court of Appeals for the Tenth Circuit affirms a lower court’s decision and dismisses the complaint due to difficulties to prove the possessed market power and the adverse effects on competition (Suture Express / Cardinal Health / Owens & Micro)
Mc Dermott Will & Emery (Irvine)
In an antitrust case involving bundled discount on sutures, the United States Court of Appeals for the Tenth Circuit affirmed a lower court decision granting summary judgment in favor of defendants Cardinal Health 200, LLC and Owens & Micro Distribution, Inc. The Tenth Circuit held that (...)

The Swedish Patent and Market Court upholds a decision by the Competition Authority to fine a tobacco company for abuse of dominance (Swedish Match)
European Commission (Brussels)
Swedish Competition Authority: Tobacco company Swedish Match fined for abuse of market power* The Patent and Market Court in Sweden has ruled that Swedish Match, a producer of snus tobacco, must pay fines amounting to almost SEK 38 million (€ 4 million) for abusing its dominant position. (...)

The US Court of Appeals for the Second Circuit overturns dismissal of an antitrust suit against an investment banking company accused of monopolizing the market for silver futures (Wacker / JP Morgan)
Hausfeld (New York)
In an unsigned summary order in Wacker v. JP Morgan Chase & Co., a Second Circuit panel (Judges Cabranes, Pooler and Lynch) overturned dismissal of an antitrust suit brought by a group of precious metals traders and a hedge fund alleging that JP Morgan unlawfully monopolized the market for (...)

The Italian Administrative Court of Lazio partially upholds the fine imposed on the company managing the Milan airports for abusive practices in the general aviation sector (SEA)
Giannino SI (Monserrato)
Introduction By an appeal judgment released in the SEA v AGCM case , the Administrative Court for the Region of Latium (the Court) has partially upheld the challenged decision made by the Italian Competition Authority (ICA) in Cedicor/SEA , by which the ICA fined the manager of the Milan (...)

The Bulgarian Supreme Administrative Court quashes the Competition Authority’s decision on an abuse of dominance in the energy sector, due to a different economic analysis (Energo Pro)
Tsvetkova Bebov Komarevski (Sofia)
The Supreme Administrative Court of the Republic of Bulgaria seating in 3-member panel (the “Supreme Administrative Court”, the “Court or the “Supreme Court”) repealed the decision of the Bulgarian Commission for Protection of Competition (the “Commission”) by virtue of which the Commission imposed (...)

The Polish Supreme Court finds that a decision of the Competition Authority and the judgment of the Court of Appeal failed to establish a sufficiently precise relevant market definition to enable the finding of an abuse of dominance in the natural gas sector (PGNiG)
Utrecht University
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Affre i Wspólnicy (Warsaw)
In the judgment of the Supreme Court (“SC”) of 10 January 2017, (III SK 61/15) concerning the alleged abuse of dominant position by PGNiG S.A. – a Polish natural gas company, the case was referred back to the Court of Appeal in Warsaw (“CA”). The SC found that neither the President of the Office of (...)

The Indian Competition Appellate Tribunal upholds the Indian Competition Authority’s decision for abuse of dominance against a coal company but cancels the fine due to the company already recently paying fine in a similar case (Sai Wardha Power / Coal India)
Vaish Associates Advocates (New Delhi)
COMPAT upholds the order passed by CCI against Coal India Limited for abuse of dominance* COMPAT by its order dated December 09, 2016 has upheld the order of CCI whereby it held that Coal India Limited and Western Coalfields Limited were acting independently of the market forces and enjoy (...)

The Ljubljana Court of Appeal annuls a decision concerning minor offense proceedings against a collecting society (SAZAS)
Fatur Law Firm (Ljubljana)
Introduction In SAZAS case, the Slovenian Competition Protection Office (hereinafter referred to as the CPO) adopted a partial administrative decision in April 2011 (Case 306-35/2009-108), finding that Združenje skladateljev, avtorjev in založnikov za zaščito avtorskih pravic Slovenije (...)

The Indian Competition Appellate Tribunal requests an investigation into an abuse of dominance by a global taxi services company (Meru Travels Solutions / Uber India)
Vaish Associates Advocates (New Delhi)
COMPAT directs investigation against Uber India for Abuse of Dominance* COMPAT by its order dated December 7, 2016, has set aside the order dated February 10, 2016 of CCI closing the information filed against Uber India Systems Private Limited (“Uber”) for alleged abuse of dominant position and (...)

The Indian Competition Appellate Tribunal reverses the Competition Authority’s decision and orders an investigation into the national gas supplier for alleged unfair contractual terms (Gipcl Gujarat Industries Power Company / Gail Gas Authority of India)
Vaish Associates Advocates (New Delhi)
COMPAT orders investigation against Gas Authority of India Limited (GAIL) for abuse of dominance* COMPAT by order dated November 28, 2016 has set aside the order of CCI refusing investigation against GAIL for allegedly incorporating unfair terms and conditions in its gas supply agreements with (...)

The Indian Competition Appellate Tribunal reverses the Indian Competition Authority’s decision for a second time and orders an investigation against movies producers (K Sera Sera Digital Cinema / Digital Cinema Initiatives)
Vaish Associates Advocates (New Delhi)
COMPAT orders investigation against producers of Hollywood movies* COMPAT by its order dated November 9, 2016 has ordered investigation against 6 producers of Hollywood films for the allegedly forcing a technology, called D-Cinema technology, for providing cinema screening under the auspices (...)

The EU Court of Justice AG Wahl recommends that the Court grant an appeal against the judgment of the General Court, which had upheld a decision of the Commission imposing a fine of €1.06 billion for abuse of a dominant position (Intel)
Van Bael & Bellis (Brussels)
On 20 October 2016, Advocate General Wahl rendered his opinion on Intel’s appeal before the Court of Justice of the European Union (“CJEU”) against the judgement of the General Court, which had upheld a decision of the European Commission of 13 May 2009 imposing a fine of € 1.06 billion for abuse (...)

The EU Court of Justice AG Wahl opts for a more effect-based approach on rebates and proposes an annulment of the EU General Court’s judgment (Intel)
Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (Paris)
In Intel’s appeal against the General Court’s judgement of June 2014 (which upheld the Commission’s decision that Intel abused its dominant position by virtue of operating exclusivity rebate schemes – see here for our e-bulletin on the judgment), Advocate General Wahl recommends that the Court of (...)

The French Supreme Court confirms fines imposed on undertaking for abusive limitation of generic entry (Sanofi-Aventis)
Van Bael & Bellis (Brussels)
On 18 October 2016, the French Supreme Court upheld the decision of the French Competition Authority (“FCA”) which had fined the pharmaceutical company Sanofi-Aventis over € 40 million for having abused its dominant position on the market for the active ingredient clopidogrel. Sanofi-Aventis was (...)

The Chinese Kunming Intermediate People’s Court decides a refusal to purchase in the refined oil market not to be anticompetitive (Yunnan Yingding Biological Energy / Sinopec)
Hogan Lovells (Beijing)
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University of Melbourne
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China Competition Bulletin (Beijing)
On 8 October 2016, the Kunming Intermediate People’s Court amended its first-instance decision in the refusal to deal dispute between Yunnan Yingding Biological Energy, a biodiesel company, and Sinopec’s branch in Yunnan. In December 2014, the court had originally decided the case in the (...)

The Indian Competition Appellate Tribunal sends a case back to the Indian Competition Authority for reconsideration of the investigation’s findings (Jaypee Greens)
Vaish Associates Advocates (New Delhi)
Competition Appellate Tribunal (COMPAT) set-aside CCI decision exonerating Jaypee Group for abuse of dominance and remands the matter back for re-consideration* COMPAT by its order dated September 28, 2016 has set-aside the order of CCI in which the CCI exonerated Jaypee Group from allegations (...)

The US Court of Appeals for the Third Circuit recognizes that a product hopping in the face of a “patent cliff” can constitute conduct in violation of the antitrust laws (Mayne / Warner Chilcott / Mylan)
Hausfeld (Philadelphia)
The Third Circuit’s recent product-hopping decision in Mylan Pharm. Inc. v. Warner Chilcott Pub. Ltd. Co (“Doryx”) has been widely criticized by commentators as breaking with established antitrust precedent. Mylan, the last remaining plaintiff in the case following a series of settlements at the (...)

The Danish Maritime and Commercial High Court rules on excessive pricing concerning the delivery of electricity (ELSAM III)
University of Copenhagen - Faculty of Law
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Accura (Copenhagen)
Summary of the case In an August 2016 ruling the Danish Maritime and Commercial High Court (Sø- & Handelsretten) confirmed that the Danish energy incumbent DONG Energy A/S (“DONG”) had infringed Article 102 and the Danish equivalent by charging excessive prices for the delivery of (...)

The Indian Competition Appellate Tribunal upholds the Competition Authority’s dismissal of abuse of dominance allegations against a mining company in the market for chrome ore (All Odisha Steel Federation / Orissa Mining Corporation)
Vaish Associates Advocates (New Delhi)
Competition Appellate Tribunal (COMPAT) upholds CCI order dismissing abuse of dominance allegation against Orissa Mining Corporation (OMC)* COMPAT by its order dated August 30, 2016 has upheld order of CCI which had dismissed allegations of abuse of dominance by OMC has been indulging in (...)

The Indian Competition Appellate Tribunal upholds the Indian Competition Authority’s dismissal of abuse of dominance allegations against a global telecom provider in the market for international roaming services (Vishwambhar Marutirao Doiphode / Vodafone India)
Vaish Associates Advocates (New Delhi)
COMPAT upholds CCI order dismissing abuse of dominance allegation against Vodafone* COMPAT by its order dated August 16, 2016 has upheld order of CCI whereby it declined to order an investigation into the allegations of abuse of dominance by Vodafone India for levying exorbitant charges for (...)

The Indian Competition Appellate Tribunal reverses the Competition Authority’s fine for discriminatory practices against a public undertaking due to objective justification (Indian Exhibition Industry Association / Ministry of Commerce and Industry / India Trade Promotion Organisation)
Vaish Associates Advocates (New Delhi)
Competition Appellate Tribunal (COMPAT) sets aside penalty imposed on India Trade Promotion Organization for abuse of dominance* COMPAT by its order dated July 1, 2016 has set aside the penalty imposed by the Competition Commission of India (CCI) on India Trade Promotion Organization (ITPO) (...)

The Indian Competition Appellate Tribunal cancels fine for abuse of dominance against coal company due to the Indian Competition Authority’s failure to uphold the principle of natural justice (Coal India)
Vaish Associates Advocates (New Delhi)
COMPAT sets-aside penalty of INR 1,773 Crores penalty on Coal India Limited (CIL) by CCI* COMPAT by its order dated May 17, 2016 has set aside CCI’s order dated April 15, 2014 wherein CCI had fined Coal India Limited for imposing unfair and discriminatory conditions in its fuel supply (...)

The US Court of Appeals for the Third Circuit declines to apply the price-cost test to a loyalty discount case in the pharmaceutical sector (Eisai / Sanofi)
Hausfeld (Philadelphia)
On May 4, 2016, the Third Circuit—following the principles it set forth in LePage’s, Dentsply, and ZF Meritor—affirmed a decision by District of New Jersey Judge Mary L. Cooper granting summary judgment in favor of the defendant in Eisai, Inc. v. Sanofi-Aventis U.S., LLC. Eisai is the latest in a (...)

The US Court of Appeals for the Third Circuit rejects antitrust claims predicated on a supplier’s market-share discount program and other promotional tactics (Eisai / Sanofi)
Baker Botts (Washington)
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Baker Botts (Washington)
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Gibson Dunn (Washington)
On May 4, 2016, the U.S. Court of Appeals for the Third Circuit announced its decision in Eisai, Inc. v. Sanofi Aventis U.S., LLC, rejecting antitrust claims predicated on a supplier’s market-share discount program and other promotional tactics. While the court’s decision adds some definition to (...)

The Indian Competition Appellate Tribunal upholds the Competition Authority’s dismissal of abuse of dominance allegations against an airline company (Air India / InterGlobe Aviation)
Vaish Associates Advocates (New Delhi)
COMPAT rules that IndiGo’s predatory recruitment of Air India’s trained pilots is not a competition issue but an employment issue* COMPAT by its order dated April 29, 2016 has upheld the CCI order dated February 10, 2016 refusing to intervene in the matter of predatory recruitment of Air India’s (...)

The Indian Competition Appellate Tribunal upholds the Competition Authority’s dismissal of abuse of dominance allegations against an international airport due to lack of evidence (Airline Operators Committee / Delhi International Airport)
Vaish Associates Advocates (New Delhi)
COMPAT upholds CCI order dismissing abuse of dominance allegation against Delhi International Airport Limited (DIAL)* COMPAT by its order dated April 12, 2016 has upheld order of CCI which had dismissed allegations of abuse of dominance by DIAL in charging licence fee from airlines using the (...)

The Higher Regional Court of Düsseldorf rejects an appeal lodged by the German incumbent postal services operator, against a decision of the Federal Cartel Office in an abuse of dominance case (Deutsche Post)
Van Bael & Bellis (Brussels)
In a recently published decision of 6 April 2016, the Higher Regional Court of Düsseldorf (“Court”) rejected an appeal lodged by Deutsche Post AG (“DPAG”), Germany’s incumbent postal services operator, against a decision of the German Federal Cartel Office (“FCO”). By decision of 2 July 2015, the FCO (...)

The Chinese Supreme People’s Court dismisses an application to re-try a case in Shaanxi involving taxis and exclusive dealing (Taxi case)
University of Melbourne
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China Competition Bulletin (Beijing)
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Hogan Lovells (Beijing)
On 17 March 2016, the Supreme People’s Court (SPC) released its decision to dismiss an application to re-try a case in Shaanxi involving taxis and exclusive dealing. In that case, two private local taxi companies sued three other local taxi companies for exclusive dealing. The SPC made its (...)

The Moscow Arbitration Court confirms the Competition Authority’s decision and prescription concerning the operating systems for smartphones (Google)
Russian Federal Antimonopoly Service (Moscow)
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Russian Federal Antimonopoly Service (Moscow)
In March 2016, the Moscow Arbitration Court expressed its support of the position of the Federal Antimonopoly Service (FAS Russia) on the case of abuse of dominance by the Google group of companies involving its actions on the Android operation system. The decision of FAS Russia was taken as (...)

The Indian Competition Appellate Tribunal upholds the Competition Authority’s decision and clarifies requirements for an interim injunction (Fast Track Call Cab / ANI Technologies / OLA Cabs)
Vaish Associates Advocates (New Delhi)
COMPAT refuses interim relief to Fast Track Call Cabs in ongoing investigation against Ola for predatory pricing in radio taxi services in Bengaluru* COMPAT by its order dated March 9, 2016 has upheld the CCI order dated September 3, 2015 refusing to grant interim injunction against (...)

The Indian Competition Appellate Tribunal refers the case back to the Competition Authority for investigation and clarifies that governmental health office constitutes an "enterprise" under the Competition Act (Biswanath Prasad Singh / DGHS Director General of Health Services)
Vaish Associates Advocates (New Delhi)
COMPAT directs re-consideration of matter against Director General of Health Services & Others* COMPAT by its order dated March 1, 2016 has set-aside the decision of CCI whereby CCI has refused to order investigation against the Director General Health Services (DGHS) for discriminating (...)

The UK High Court throws out a private claim for damages based on abuse of dominance in the online mapping sector (Streetmap / Google)
Phillips Auctioneers (London)
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Constantine Cannon (London)
Google wins court battle against StreetMap in the UK*Google won a big victory Friday in the High Court of England and Wales, which ruled that Google did not abuse its dominant position to the detriment of the now-defunct UK online mapping provider, Streetmap.The Court’s ruling against (...)

The Paris Court of Appeal overturns an abuse of dominance ruling in the market for online mapping allowing for the geolocalisation of sales points on company websites (Google / Evermaps)
Ashurst (Milan)
Paris Court of Appeal overturns Google abuse of dominance ruling* On November 25, 2015, the Paris Court of Appeal (PCA) reversed the December 2012 ruling of the Commercial Tribunal of Paris (CTP) , which found that Google (specifically Google France and Google Inc.) abused its dominant (...)

The Moscow Arbitration Court confirms that a pharmaceutical company has abused its dominance by stopping to supply insulin (Novo Nordisk)
Russian Federal Antimonopoly Service (Moscow)
Cassation Court confirmed: “Novo Nordisk” violated the antimonopoly law* On 21 October 2015, the Arbitration Court of the Moscow District upheld the ruling of the 9th Arbitration Appeal Court of 29 June 2015 and dismissed a cassation appeal of “Novo Nordisk” against the decision of the Federal (...)

The Moscow Arbitration Court confirms that an electricity provider has abused its dominance in the market of electric power transmission (MRSK Siberia)
Russian Federal Antimonopoly Service (Moscow)
Arbitration Court supported Kemerovo OFAS in a dispute with “MRSK Siberia”* Arbitration Court of the Kemerovo Region pronounced legitimacy and determination of the Office of the Federal Antimonopoly Service in the Kemerovo Region (Kemerovo OFAS) with regard to “MRSK Siberia” OJSC. The company (...)

The Croatian High Administrative Court rules on the lack of capacity for the national central bank to file a claim against a decision of the Competition Authority (HNB)
Croatian Competition Agency (Zagreb)
High Administrative Court dismisses the claim filed by the Croatian National Bank against the CCA decision* The High Administrative Court of the Republic of Croatia dismissed the claim filed by the Croatian National Bank (HNB) against the decision of the Croatian Competition Agency (CCA) on (...)

The US Court of Appeals for the Ninth Circuit upholds that a college athletics association’s restrictions on compensation should be subject to antitrust scrutiny (O’Bannon / NCAA)
Constantine Cannon (New York)
NCCA Gains Ground Against Student-Athletes In Appeal Of O’Bannon Case* Last week, the United States Court of Appeals for the Ninth Circuit ruled that the NCAA may restrict colleges from compensating student-athletes beyond the cost of attendance, handing the NCAA a partial victory in its (...)

The South African Competition Tribunal addresses its first predatory pricing case in the newspaper market (Media24)
Wallonia-Brussels Trade Commission - AWEX (Johannesburg)
First predatory pricing case before the Competition Tribunal* A year ago, we at AAT reported on the intervention by competitors in the merger between Media24 and Paarl Media. Today, we want to highlight a “one-year-later” feature about that same company, which has now been found liable of (...)

The Latvian Administrative Regional Court upholds the decision of the Competition Authority that fined and imposed remedies on the national gas supplier in a case of abuse of dominance (Latvijas Gāze)
Latvian Competition Council (Riga)
Court agrees with the Competition Authority to fine the National Gas Supplier* On 2 September, the Administrative Regional Court confirmed the Competition Council’s (CC) decision to impose the only natural gas supplier in Latvia – AS "Latvijas Gāze" – remedies to change the practice of debt (...)

The Moscow Arbitration Court confirms the fine imposed on a company for abuse of dominance in the market of cards for tachographs (NIIAT)
Russian Federal Antimonopoly Service (Moscow)
Arbitration Court: “NIIAT” OJSC will pay a fined to fixing monopolistically high prices for AETR tachograph* On 28 July 2015, Moscow Arbitration Court pronounced legitimacy of FAS decision to fine “NIIAT” OJSC 737,500 RUB for abusing dominance. In September 2014, the Federal Antimonopoly Service (...)

The EU Court of Justice rules on the seeking of injunctions in the context of standard-essential patents encumbered by FRAND in the technology sector (Huawei / ZTE)
Norton Rose Fulbright (Brussels)
,
McDermott Will & Emery (Brussels)
THE EUROPEAN UNION’S HIGHEST COURT RULES ON STANDARD-ESSENTIAL PATENTS INJUNCTIONS AND ABUSE OF DOMINANCE* The long-awaited ruling on the seeking of injunctions in the context of standard-essential patents encumbered by fair, reasonable, and non-discriminatory (FRAND) terms has been delivered (...)

The EU Court of Justice confirms practical steps to be taken by standard-essential patent holders before seeking injunctions (Huawei / ZTE)
Norton Rose Fulbright (London)
Synopsis The Court of Justice of the European Union has ruled that the holder of a Standard Essential Patent that has committed to license its Standard Essential Patent on FRAND terms may be found in breach of the competition rules (Article 102 TFEU) by seeking an injunction against a (...)

The EU Court of Justice finds that a holder of a standard-essential patent may abuse a dominant position by seeking to enjoin infringement (Huawei / ZTE)
Covington & Burling (Brussels)
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Covington & Burling (Brussels)
On July 16, 2015, the Court of Justice of the European Union (“CJEU” or “the Court”) issued its long-awaited judgment in Huawei Technology Co. Ltd v ZTE Corp., ZTE Deutschland GmbH. The CJEU found that the holder of a standard essential patent (“SEP”) may, in certain circumstances, abuse its dominant (...)

The Slovenian Supreme Court sets aside the judgment of the Administrative Court on the abuse of a dominant position in the telecommunications sector (Telekom Slovenije)
Rojs, Peljhan, Prelesnik & partnerji (Ljubljana)
By its decision ref. no. X Ips 58/2015 of 15 July 2015 the Slovenian Supreme Court set aside the first instance judgment and referred the case back to the Administrative Court due to its lack of economic analysis of the abuse and of its impact on consumer welfare. Thereby the Supreme Court made (...)

The Moscow Arbitration Appeal Court confirms a fine imposed on a gas provider for abuse of dominance (Sakhatrnasneftegaz)
Russian Federal Antimonopoly Service (Moscow)
Appeal Court confirmed the conclusions of Yakutia OFAS* The 4th Arbitration Appeal Court supported the Office of the Federal Antimonopoly Service in the Republic of Sakha (Yakutia) (Yakutia OFAS Russia) in a dispute with “Sakhatrnasneftegaz” OJSC. Earlier the regulator found that the company (...)

The Spanish High Court issues landmark judgment on the need to establish foreclosure effects of a margin squeeze (Correos)
Linklaters (Madrid)
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Linklaters (Madrid)
1 Introduction On 21 January 2014, the Spanish Markets and Competition Commission (“CNMC”) imposed a fine of €8,170,000 on the Spanish postal service incumbent Sociedad Estatal Correos y Telégrafos, S.A. (“Correos) for allegedly abusing its dominant position on the wholesale market for postal (...)

The Spanish High Court annuls the decision of the Spanish Competition Authority fining the public postal operator for an abuse of dominant position consisting on margin squeeze due to lack of evidence (Correos)
Callol, Coca & Asociados (Madrid)
,
Callol, Coca & Asociados (Madrid)
,
Callol, Coca & Asociados (Madrid)
On 21 January 2014, the NMCC fined € 8.17 million on Correos for abusing its dominant position on the wholesale market for postal services (access to the postal network) and on the retail market for postal services involving large senders (business customers) in Spain. The (...)

The Milan Court of Appeal overturns a judgment on screen scraping and intermediation of online travel agencies and rejects the allegations of abuse of dominance by an airline (Lastminute / Viaggiare / Ryanair)
European Court of Justice (Luxembourg)
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Nunziante Magrone (Rome)
Introduction With two judgements delivered on June 2015 regarding cases brought by Lastminute.com S.r.l. and Viaggiare S.r.l. respectively against Ryanair , the Court of Appeal of Milan held that Ryanair’s refusal to grant travel agencies the right of intermediating its tickets does not (...)

The Moscow Arbitration Appeal Court confirms the fine imposed on a pharmaceutical company for abuse of dominance (Novo Nordisk)
Russian Federal Antimonopoly Service (Moscow)
Appeal Court confirmed: “Novo Nordisk” violated the antimonopoly law* On 22 June 2015, the 9th Arbitration Appeal Court upheld the judgment of the Court of First Instance and pronounced legitimacy of the decision of the Federal Arbitration Service (FAS Russia) that “Novo Nordisk” Ltd. had (...)

The Swedish Supreme Court rejects a claim for annulment of an arbitration award (Systembolaget / Absolut)
Haavind (Oslo)
Arbitration award and antitrust appeals: Sweden’s Supreme Court discusses Eco Swiss doctrine* The EUCJ’s well-known Eco Swiss judgment of 1999 established an EU version of the so-called ‘second look’ doctrine originally developed in the USA. Arbitration tribunals may rule on competition law claims (...)

The Russian Arbitration Court confirms the decision of the Competition Authority which concluded that a pharmaceutical company has abused its dominance (Baxter)
Russian Federal Antimonopoly Service (Moscow)
Cassation Court: FAS decision and determination regarding “Baxter” are legitimate* On 16 June 2015, the Arbitration Court of the Moscow District (Cassation Court) confirmed legitimacy of the decision and determination of the Federal Antimonopoly Service (FAS Russia) as well as the Order to hold (...)

The Latvian Supreme Court upholds the Competition Authority’s decision on the establishment of abuse of dominance in retail trade in the market of beauty and household goods (Drogas)
Vilgerts (Riga)
On 15 June 2015 the Supreme Court of Latvia upheld the Latvian Competition Council’s “LCC”) decision against AS “Drogas” ( “Drogas”), a leading beauty and household goods retail trade chain operator, on establishment of abuse of dominance in retail trade in the market of beauty and household goods. (...)

The Moscow Arbitration Appeal Court confirms the fine imposed on a pharmaceutical company for abuse of dominance (Teva)
Russian Federal Antimonopoly Service (Moscow)
Appeal Court confirmed legitimacy of the fine upon TEVA* On 11 June 2015, the 9th Arbitration Appeal Court dismissed the appeal filed by TEVA PHARMACEUTICAL INDUSTRIES LIMITED (Israel) against FAS definition (1) to hold TEVA administratively liable for failure to execute a determination. In (...)

The Russian Federal Arbitration Court of the North-Western Federal District confirms the fine imposed on a company for creating discriminatory conditions in the retail market (Lenta)
Russian Federal Antimonopoly Service (Moscow)
Court confirmed legitimacy of the 2-million fine for “Lenta”* The Federal Arbitration Court of the North-Western Federal District confirmed legitimacy of the determination of the Office of the Federal Antimonopoly Service in St Petersburg (St Petersburg OFAS Russia) on an administrative fine (...)

The Moscow Arbitration Court confirms that a cement producer has abused its dominance in Crimea (Stroiindustria)
Russian Federal Antimonopoly Service (Moscow)
Arbitration Court supported FAS in a dispute with “Stroiindustria” Bakhchisaray Construction Enterprise”* Moscow Arbitration Court pronounced legitimacy and reasonableness of the decision and determination issued by the Federal Antimonopoly Service (FAS Russia) on the case against (...)

The Italian Supreme Court opens the doors to standalone private actions (Cargest)
Bonelli Erede (Rome)
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Bonelli Erede (Rome)
In its decision of 6 June 2015 the Italian Supreme Court annulled the previous decision of the Court of Appeal of Rome , which had rejected the claim brought by a number of fruit and vegetable wholesalers (the “Wholesalers”) against Cargest - the company that manages the fruit and vegetable (...)

The Italian Supreme Court applies the principles of Directive 2014/104/EU in favor of claimants in a stand-alone case concerning an abuse of dominant position (Cargest)
Studio Legale Scoccini (Rome)
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Linde (Milan)
Introduction On the 4th of June 2015, the Italian Supreme Court of Cassation (hereinafter referred to as “ISC”) overruled a judgment of the Court of Appeal of Rome concerning a claim brought by 52 food distributors against Cargest Srl because of an abuse of dominant position by the defendant. (...)

The Guangdong High People’s Court hears the appeal of one of China’s first administrative monopoly cases (Guangdong Education Department / Shenzhen Sware Technology)
University of Melbourne
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China Competition Bulletin (Beijing)
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Hogan Lovells (Beijing)
One of China’s first administrative monopoly court cases heard in Guangdong* On 28 May 2015, the Guangdong High People’s Court heard the appeal of the administrative monopoly case against the Guangdong Education Department filed by Shenzhen Sware Technology. The court is expected to announce its (...)

The US District Court for the Eastern District of Pennsylvania dismisses claims of conspiracy to protect a monopoly by "product hopping", citing risk to slow or halt pharmaceutical innovation (Mylan / Warner Chilcott)
BakerHostetler (Philadelphia)
Product Hopping and Antitrust: Mylan Court Dismisses Claims on Summary Judgment, Citing Need to Avoid Chilling Pharmaceutical Innovation* A recent summary judgment opinion from the Eastern District of Pennsylvania breaks new ground in the developing antitrust law on “product hopping” claims. (...)

The East Kazakhstan Judicial Appeal Board fines a group of companies for refusing to conclude a contract with the customer (AES Ust / Kamenogorsk HPS)
Center for Development and Protection of Competition Policy (Astana)
,
Kazakhstan Association of Mining and Metallurgical Companies (Astana)
,
Center for Development and Protection of Competition Policy (Astana)
On April 13, 2015 Judicial Appeal Board on civil and administrative cases of East Kazakhstan region considered the petition of appeal filed by “AES Ust-Kamenogorsk HPP” LLP against the order of the specialized administrative court of Ust-Kamenogorsk dated March 16, 2015 (Court of first (...)

The Lisbon Appeal Court confirms €2.7 million fine for discriminatory pricing under the national equivalent of Art. 102 TFEU and revolutionizes access to information for third parties (Sport TV)
Eduardo Paz Ferreira & Associados (Lisboa)
On 11 March 2015, the Lisbon Appeal Court (LAC) rejected all arguments put forward by the appellant and confirmed the judgment of the Competition, Regulation and Supervision Court (CSRC) of 4 June 2014, which had, in turn, confirmed (with a reduction of the fine, from 3.7 to 2.7 million EUR) (...)

The Lisbon Court of Appeal upholds the decision of the Portuguese Competition Authority against a sports channel for abuse of dominance in the market of conditional-access premium sports TV channels (Sport TV)
Portuguese Competition Authority (Lisbon)
Portuguese Competition Authority’s decision against Sport TV confirmed by the Lisbon Court of Appeal* The Lisbon Court of Appeal confirmed the Portuguese Competition Authority’s (PCA) decision against Sport TV for abusing its dominant position in the market of conditional-access premium sports (...)

The US District Court for the District of Maryland upholds an antitrust action against a patent troll (Intellectual Ventures / Capital One)
Rutgers University (Camden)
This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On March 2, 2015, Judge Paul W. Grimm of the U.S. District Court for the District of Maryland offered a wide-ranging analysis of antitrust claims against the (...)

The US District Court for the Northern District of California dismisses an antitrust claim for lack of proof of both the conduct and the injury (Google)
DLA Piper Weiss-Tessbach (Vienna)
Two recent victories for Google in the United States* On 20 February 2015 a federal judge in California dismissed an antitrust lawsuit against Google alleging that it violated antitrust laws by requiring makers of Android tablets and smartphones to designate Google as the default search engine (...)

The US District Court for the District of Maryland reminds the need for a harmonious and supportable market definition to win an antitrust case (Live Nation)
Constantine Cannon (Washington)
Federal Court Rings Down The Curtain On Baltimore-D.C. Rock Promoters’ Antitrust Case Against Live Nation* A long-running antitrust battle of the bands between a Baltimore-D.C. area regional concert promoter and venue operator and the concert colossus Live Nation got the hook in the U.S. (...)

The Russian Arbitration Court of Appeal confirms that a pharmaceutical company has abused its dominance (Baxter)
Russian Federal Antimonopoly Service (Moscow)
Appeal Court supported FAS arguments on the case against “Baxter” CJSC* On 17 February 2015, the 9th Arbitration Appeal Court confirmed legitimacy of the decision and determination of the Federal Antimonopoly Service (FAS Russia) on the antimonopoly case against “Baxter” CJSC, and a definition on (...)

The Moscow Arbitration Court confirms that a company has abused its dominance in the market of mine rescue services (Mine Rescue Brigade)
Russian Federal Antimonopoly Service (Moscow)
The Court confirmed legitimacy of FAS decision with regard to “Mine Rescue Brigade”* On 25 December 2014, Moscow Arbitration Court pronounced legitimacy of reasonableness of the decision of the Federal Antimonopoly Service (FAS Russia) on the case against “Mine Rescue Brigade” Federal State (...)

The Moscow Arbitration Court confirms that a distributor has abused its dominance by creating discriminatory conditions in determining the costs of goods advertising services (ATAK)
Russian Federal Antimonopoly Service (Moscow)
Cassation Court confirmed that creating discriminatory conditions for advertising goods in the “ATAK” stores are unlawful* On 18 December 2014, the Arbitration Court of the Moscow District supported the arguments put forward by the Federal Antimonopoly Service (FAS Russia) against “ATAK” Ltd. (...)

The EU Court of Justice AG Wathelet states that holding a standard essential patent does not mean a company is dominant (Huawei / ZTE)
Covington & Burling (Brussels)
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Covington & Burling (Brussels)
The Reference On 5 April 2013, the Landgericht Düsseldorf referred questions relating to injunctive relief over standard-essential patents (“SEPs”) to the Court of Justice (“CJEU”) in connection with a patent dispute between Huawei Technologies Co. Ltd (“Huawei”) and ZTE Corp., ZTE Deutschland GmbH (...)

The Paris Court of Appeal reduces the fine imposed by the Competition Authority on the national railway for abuse of dominance (SNCF)
Herbert Smith Freehills (Paris)
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Herbert Smith Freehills (Paris)
In its decision no. 12-D-25 of 18 December 2012, the Autorité de la Concurrence (the French competition authority - "FCA") fined the French national railway SNCF nearly EUR 61 million for 5 counts of abusive practices in the railway freight sector and ordered the company to cease the (...)

The Chinese Supreme Court elaborates detailed fundamental principles of anti-monopoly law, in particular in the context of abuse of dominance on the internet market, in its first anti-monopoly case (Qihoo / Tencent)
King & Wood Mallesons (Beijing)
,
King & Wood Mallesons (Beijing)
The Supreme Court Goes Online with Anti-Monopoly Law Principles:A Review of Qihoo v.s. Tencent Abuse of Market Dominance Case* Introduction On 15 November 2011, Qihoo issued proceedings against Tencent in the Guangdong Higher Court, asserting that Tencent had abused its dominant position, (...)

The Chinese Supreme Court issues the first decision based on the economic analysis under Anti-Monopoly Law (Qihoo / Tencent)
Deacons (Hong Kong)
On October 16, 2014, the Chinese Supreme People’s Court (SPC) announced its ruling on the landmark antitrust litigation brought by Qihoo 360 against Tencent. The decision marked the SPC’s first ruling on a matter filed under China’s Anti-Monopoly Law (AML), which came into effect in August 2008. (...)

The Chinese Supreme Court sets up the standard for antitrust private litigation with a detailed analysis method regarding market definition and dominance establishment (Qihoo / Tencent)
AnJie Law (Beijing)
,
AnJie Law (Beijing)
When the Antitrust Encounter the Internet: The Legal Battle between Qihoo 360 and Tencent Finally Comes to the End* The outgoing year has witnessed the significantly increasing role of „Antitrust‟ and „Internet‟ played in China‟s economy. With the Supreme People‟s Court („SPC‟) ratified the original (...)

The Moscow Arbitration Appeal Court confirms that the behavior of an Authority has created disadvantages and has resulted in the monopolization of the relevant market (Cheboksary Authority / Cash Settlement Centre)
Russian Federal Antimonopoly Service (Moscow)
Appeal Court: Cheboksary Authority created advantages for “Cash Settlement Centre” OJSC in the prejudice of a competitor* On 8th October 2014, the 9th Arbitration Appeal Court upheld the judgment of Moscow Arbitration Court that the decision and determination on the case on violating the (...)

The Russian Arbitration Court confirms the warning addressed to a pharmaceutical company that refused to supply the unique medicine for treating renal deficiency by peritoneal dialysis (Baxter)
Russian Federal Antimonopoly Service (Moscow)
Actions of “Baxter” CJSC are pronounced unlawful* On 25th September 2014, Moscow Arbitration Court confirmed legitimacy of the decision and determination of the Federal Antimonopoly Service (FAS Russia) in the case against “Baxter” CJSC for violating the antimonopoly law. The company refused to (...)

The Czech Regional Court in Brno confirms the Czech NCA’s decision having imposed penalty for predatory pricing in bus passenger transport (Student Agency)
Skils (Prague)
On 25 September 2014, the Regional Court in Brno confirmed findings of the Office for Protection of Competition (“Office”) regarding predatory pricing by Student Agency (a leading bus transport company) and rejected judicial review claim lodged by the said company. The Regional Court in Brno so (...)

The Italian Administrative Supreme Court reinstates a decision issued by the Competition Authority accepting commitments by the dominant satellite TV company regarding the discriminatory conditions of access to its broadcasting platform (Sky Italia)
Legance - Studio Legale Associato (Rome)
By judgement no. 4773 of 22 September 2014, the Italian Supreme Administrative Court (“Consiglio di Stato”) upheld an appeal brought by Sky Italia s.r.l. (“Sky”) and the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato, “AGCM”) and reinstated the AGCM decision no. 21316 (...)

The Moscow Arbitration Court confirms the fine imposed on an undertaking for monopolization (Deon)
Russian Federal Antimonopoly Service (Moscow)
Arbitration Court dismissed the claim of Chuvash Cabinet of Ministers to invalidate FAS decision* On 15th September 2104, Moscow Arbitration Court dismissed the claim of the Cabinet of Ministers of the Republic of Chuvashia to invalidate FAS decision on an antimonopoly case. On 6th March (...)

The Moscow Arbitration Court confirms the warnings addressed to air carriers that have a dominant position on some markets (Aeroflot / Russian Airlines)
Russian Federal Antimonopoly Service (Moscow)
FAS warnings are legitimate* On 15th September 2014, Moscow Arbitration Court dismissed the claim of “Aeroflot – Russian Airlines” OJSC to invalidate a warning of the Federal Antimonopoly Service (FAS Russia). In April 2014, the Antimonopoly Service issued warnings to air carriers that have (...)

The Moscow Arbitration Court confirms the decision of the Russian Competition Authority not to initiate a case on violating the antimonopoly law (National Settlement Depository Company)
Russian Federal Antimonopoly Service (Moscow)
Court of three instances confirmed legitimacy of FAS decision not to initiate an antimonopoly case NRD CJSC NKO* On 9th September 2014, Moscow District Arbitration Court upheld the judgment of Moscow Arbitration Court and the ruling of the 9th Arbitration Appeal Court, confirming legitimacy (...)

The Indian Supreme Court upholds the Competition Appellate Tribunal’s decision to impose a record penalty on the largest national commercial real estate developer (DLF)
Vaish Associates Advocates (New Delhi)
SC orders DLF to deposit penalty imposed by CCI* Supreme Court by way of its order dated August 27, 2014 directed DLF to deposit the penalty amount of INR 630 crore within a period of 3 months. The Court further directed DLF to deposit INR 50 crore within a period of 3 weeks as a (...)

The North Caucasus Arbitration Court confirms that an electricity provider has abused its dominance by switching off electric power to water supply facilities used for water drainage (NESK)
Russian Federal Antimonopoly Service (Moscow)
“NESK” OJSC violated the antimonopoly law* On 20th August 2014, the Arbitration Court of the North Caucasus District confirmed legitimacy of the decision issued by the Office of the Federal Antimonopoly Service in the Krasnodar Region (Krasnodar OFAS Russia) with regard to “NESK” OJSC and stated (...)

The Brazilian Competition Authority issues two legal opinions in investigations related to sham litigation practices (Eli Lilly do Brasil)
Madrona Advogados (São Paulo)
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Tauil & Chequer in cooperation with Mayer Brown (Sao Paulo)
On August 20, 2014, the General Superintendence of the Administrative Council for Economic Defense (“CADE”) rendered two legal opinions in investigations related to sham litigation practices recommending to CADE’s Tribunal: (i) the conviction of the companies Eli Lilly do Brasil Ltda. and Eli (...)

The North Caucasus Arbitration Court confirms the fine imposed on an electricity provider for abuse of dominance by supplying electric power of inadequate quality to a residential house (NESK-Elektroseti)
Russian Federal Antimonopoly Service (Moscow)
A million RUB fine upon “NESK-Elektroseti”* On 13th August 2014, the Arbitration Court of the North-Caucasus District confirmed legitimacy of the decision issued by the Office of the Federal Antimonopoly Service in the Krasnodar region (Krasnodar OFAS Russia) with regard to “NESK-Elektroseti” (...)

The Moscow Arbitration Court confirms the fine imposed on an oil provider having unreasonably increased retail prices for gasoline and diesel fuel in Sochi (Lukoil)
Russian Federal Antimonopoly Service (Moscow)
“Lukoil” subsidiary lost a claim after increasing prices* “Lukoil-Yugnefteproduct” shall pay over 14 million RUB for unreasonably increasing gasoline prices in Sochi. On 7th August 2014, Arbitration Court confirmed reasonableness of a determination issued by the Office of the Federal Antimonopoly (...)

The Indian Competition Appellate Tribunal upholds that the relevant product market determined in case of abuse of dominance must remain broader than in cases of merger (National Stock Exchange of India)
Eastern Book Company (Maine)
India – Competition Appellate Tribunal on determination of relevant product market* In its order passed on 5th August, 2014 the Indian Competition Appellate Tribunal upheld the decision given by the Competition Commission of India (CCI) holding the National Stock Exchange of India Ltd. (NSE) (...)

The Italian Administrative Court of Second Instance confirms the Competition Authority’s decision concerning an abuse of dominant position in the television audience measurement sector (Auditel)
Lipani Catricalà (Rome)
1. Premise – This work is part of a project (hereinafter, the “Project”) aimed at offering a quarterly overview of all the decisions of Italian administrative courts, which involve the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato, hereinafter the “ICA”). (...)

The EU Court of Justice holds that a Member State may be found to have infringed Art. 106(1) TFEU if its measures create a situation in which a public undertaking or an undertaking on which it has conferred special or exclusive rights is led to abuse its dominant position (Greek Lignite case)
Gibson Dunn (Brussels)
This article has been nominated for the 2015 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. ECJ held that the legal standard established by the General Court was incorrect, as the Commission was not required to identify or establish that an actual (...)

The Moscow Arbitration Court confirms the decision of the Russian Competition Authority having sanctioned an undertaking for market monopolization (Cheboksary Authority)
Russian Federal Antimonopoly Service (Moscow)
Arbitration Court supported FAS decision with regard to Cheboksary Authority* On 15th July 2014, Moscow Arbitration Court dismissed a claim of Cheboksary Authority to invalidate FAS decision and determination on a case on violating the antimonopoly law. On 6th March 2014, FAS found that (...)

The Moscow Arbitration Appeal Court compels an electricity provider to pay the fine inflicted by the Competition Authority for abuse of dominance (MOESK)
Russian Federal Antimonopoly Service (Moscow)
The Court obligated “MOESK” to transfer 232 million RUB of unlawfully obtained income to the federal budget* On 15th July 2014, the 9th Arbitration Appeal Court confirmed legitimacy of the determination issued by the Federal Antimonopoly Service (FAS Russia) with regard to “MOESK” OJSC. The grid (...)

The Canadian Supreme Court declines an application for leave to appeal in an antitrust case against a trade association (Toronto Real Estate Board)
Ferrero (Toronto)
Supreme Court of Canada declines Toronto Real Estate Board appeal* The Supreme Court of Canada recently dismissed the application by the Toronto Real Estate Board (TREB) for leave to appeal the Federal Court of Appeal’s judgment overruling a decision of the Competition Tribunal that had (...)

The Finnish Market Court rejects the appeal and imposes the fines proposed by the FCCA for abuse of dominant position in the production and wholesale market of fresh milk (Valio)
Finnish Competition and Consumer Authority (Helsinki)
FCCA satisfied with Market Court ruling on Valio By a decision issued on 26 June, the Market Court rejected Valio’s appeal and imposed on the company a €70m fine proposed by the Finnish Competition and Consumer Authority (FCCA) for abuse of dominant position in the production and wholesale (...)

The Moscow Arbitration Appeal Court confirms the legitimacy of a warning delivered by the Competition Authority to a pharmaceutical company that abused its dominance (Novo Nordisk)
Russian Federal Antimonopoly Service (Moscow)
Appeal Court confirmed legitimacy of FAS warning to “Novo Nordisk”* On 23rd June 2014, the 9th Arbitration Appeal Court dismissed the appeal of “Novo Nordisk” Ltd. on a judgment of Moscow Arbitration Court that supported a FAS warning issued to “Novo Nordisk” Ltd. with regard to some elements of (...)

The EU General Court upholds in its entirety the Commission’s decision imposing a fine on a microprocessor manufacturer for abusing a dominant position in the market for desktop and laptop microprocessors (Intel)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
In a long-awaited judgment issued on June 12, 2014, the General Court upheld in its entirety the European Commission’s May 13, 2009, decision imposing a fine of €1.06 billion ($1.5 billion) on Intel for abusing a dominant position in the market for x86 CPUs. In particular, the court upheld the (...)

The EU General Court upholds the Commission’s decision in consideration of two exclusionary practices on the market for the supply of CPUs, opening the door to a further appeal to the Court of Justice and a possible application before the ECtHR (Intel)
University of Bristol - Law School
Could Intel challenge its 1bn Euro fine on grounds of ’corporate human rights’* After last week’s General Court Judgment in Intel v Commission, T-286/09, EU:T:2014:475, the 2 month period for Intel to appeal the confirmation of its 1bn Euro fine before the Court of Justice of the EU on points of (...)

The EU General Court upholds the Commission’s record fine and states that exclusivity-inducing rebates are anticompetitive by default (Intel)
DG COMP (Brussels)
This article has been nominated for the 2015 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Intel and the future of Article 102* A test-case for the effects-based approach In a long-awaited ruling, last week’s General Court judgment has confirmed the (...)

The US Court of Appeals for the Second Circuit clarifies that a patent holder’s contractual duty to deal is not necessarily subject to an antitrust duty to deal (Louisiana Wholesale Drug Company / Shire)
McDermott Will & Emery (Paris)
Addressing for the first time whether a patent holder under a contractual duty to deal is also subject to an antitrust duty to deal, the U. S. Court of Appeals for the Second Circuit upheld dismissal of a putative antitrust class action challenge to a drug manufacturer’s refusal to fully supply (...)

The Italian Administrative Court of first instance orders the recommencement of the awarding of a public selection procedure for a breach of competition rules in the maritime sector (Marworld Ship Management and Services / Alilauro / Snav / Rifim)
University of London - School of Economics Birkbeck College
On the 5th of June 2014, the Italian Administrative Court of first instance (the “Court”) held a judgment against the Joint-venture formed, inter alia, by Snav S.p.A. and Rifim S.r.l., the Joint-venture formed, inter alia, by Marworld Ship Management and Service S.p.A., and the operator Alilauro (...)

The Tokyo IP High Court considers the enforceability of a standard essential patent after FRAND declaration (Apple / Samsung)
Fukami Patent Office (Osaka)
Japan IP High Court Decisi on of Samsung vs. Apple - Enforceability of Standard Essential Patent after FRAND declaration- * On May 16, 2014, the Grand Panel of the Japan IP High Court delivered a judgement in Samsung Electronics Co., Ltd. vs. Apple Japan LLC concerning three consolidated (...)

The Lazio Administrative Court upholds a fine of €103.8 million for abuse of dominant position in the telecom sector (Telecom Italia)
Van Bael & Bellis (Brussels)
On 8 May 2014, the Lazio Administrative Court (LAC) handed down its judgment upholding the decision of the Italian Competition Authority (ICA) of 9 May 2013, which had imposed a fine of approximately €103.8 million on Telecom Italia for abuse of a dominant position on the Italian (...)

The Moscow Arbitration Court upholds the decision of the Competition Authority stating that an undertaking specialized in milk products had created discriminatory conditions for its suppliers (Ashan)
Russian Federal Antimonopoly Service (Moscow)
Arbitration Court: “Ashan” created discriminatory conditions for suppliers of milk and milk products* On 6th May 2014, Moscow Arbitration Court confirmed legitimacy of the decision and determination of the Federal Antimonopoly Service (FAS Russia) with regard to “Ashan” Ltd. In 2013, the (...)

The Russian Arbitration Court of West-Siberian District upholds the fine imposed by the Competition Authority against a gas supplier for abuse of dominance (Omskoblgaz)
Russian Federal Antimonopoly Service (Moscow)
Cassation Court confirmed legitimacy of the fined imposed by “Omskoblgaz” OJSC for abusing dominance* On 30th April 2014, the Federal Arbitration Court of West-Siberian District upheld the determination of the Office of the Federal Antimonopoly Service in the Omsk region (Omsk OFAS Russia) to (...)

The Russian Appeal Court upholds the Competition Authority’s decision having fined a railway company for abuse of dominance (Russian Railways)
Russian Federal Antimonopoly Service (Moscow)
Appeal Court confirmed legitimacy of an over 6 million RUB fine imposed upon “Russian Railways” OJSC* On 28th April, the 7th Arbitration Appeal Court upheld the determination of the Office of the Federal Antimonopoly Service in the Kemerovo Region (Kemerovo OFAS Russia) to fine “Russian Railways” (...)

The Moscow Arbitration Court upholds the fine imposed by the Competition Authority on the electricity provider for abuse of dominance (MRSK Urals)
Russian Federal Antimonopoly Service (Moscow)
The fine imposed upon “MRSK Urals” OJSC is legitimate* On 28th April 2014, the Federal Arbitration Court of the Moscow District pronounced legitimacy of a determination issued by the Federal Antimonopoly Service (FAS Russia) to hold “MRSK Urals” OJSC administratively liable for abusing market (...)

The Russian Arbitration Court upholds the fine imposed by the Competition Authority against a gas supplier for abuse of dominance (Gazprom Mezhregiongaz Ulyanovsk)
Russian Federal Antimonopoly Service (Moscow)
“Gazprom Mezhregiongaz Ulyanovsk” will not avoid a fine for unlawfully restricting gas supplies* On 23rd April 2014, Arbitration Court pronounced legitimacy of a determination of the Office of the Federal Antimonopoly Service in the Ulyanovsk Region (Ulyanovsk OFAS Russia) and upheld the 562,500 (...)

The Moscow Arbitration Court upholds the Competition Authority’s decision stating that an electricity provider abused its dominant position (MOESK)
Russian Federal Antimonopoly Service (Moscow)
Cassation Court: “MOESK” OJSC abused market dominance* On 23rd April 2014, the Federal Arbitration Court of the Moscow District supported the rulings of the Court of First Instance and Appeal Court that had pronounced legitimacy of the decision and determination of the Federal Antimonopoly (...)

The Moscow Arbitration Court upholds the fine imposed by the Competition Authority on a company in the market of services for advertising goods (ATAK)
Russian Federal Antimonopoly Service (Moscow)
Arbitration Court: decision about “ATAK” Ltd. and the imposed fine are legitimate* On 15th April 2014, Moscow Arbitration Court pronounced legitimacy of the decision and determination of the Federal Antimonopoly Service (FAS Russia) and the fines upon “ATAK” Ltd. – 18 million RUB. In 2013, the (...)

The Russian Arbitration Court confirms the fine imposed by the Competition Authority on an electricity supplier (DESK)
Russian Federal Antimonopoly Service (Moscow)
Cassation Cur confirmed legitimacy of an over 10 million fine imposed upon “DESK” OJSC* On 10th April 2014, the Federal Arbitration Court of the North Caucasus District confirmed legitimacy of an over 10 million fine imposed upon “Dagestan Energy Supplying Company” OJSC (“DESK” OJSC) for violating (...)

The Italian Council of State confirms the Competition Authority’s decision adopted in an abuse of dominance case in the mass retail sector (Coop Estense / AGCM)
Bonelli Erede (Rome)
,
Bonelli Erede (Rome)
In its decision of 8 April 2014 the Italian Administrative Court of Last Instance (“Council of State”) overruled the previous decision of the Administrative Court of First Instance (“TAR Lazio”) and confirmed the legitimacy of the decision of the Italian Competition Authority (“ICA”) , which had (...)

The Lisbon Court of Appeal revises an arbitral award in a dispute between the national pharmacy association and an information technology company (Associação Nacional de Farmácias and Farminveste / IMS Health)
Eduardo Paz Ferreira & Associados (Lisboa)
Replacing a previous contract, the National Pharmacy Association (ANF) executed a contract with IMS Health in 2008, by which it transmitted to the latter data on purchases in its associated pharmacies, in exchange for remuneration. This data was used to provide pharma market intelligence in a (...)

The UK Competition Appeal Tribunal publishes a notice of appeal against a decision to sell off one cement plant (Lafarge Tarmac)
Vinson & Elkins (London)
The UK cement market has been under much scrutiny recently. In January 2014, the old UK competition regulator, the Competition Commission (now replaced by the Competition and Markets Authority or CMA) published its final report following its market investigation into the aggregates, cement and (...)

The Russian Arbitration Court upholds the warning delivered by the Competition Authority against a pharmaceutical company aiming to eliminate disadvantageous contract conditions (Novo Nordisk)
Russian Federal Antimonopoly Service (Moscow)
Moscow Arbitration Court confirmed legitimacy of a FAS warning issued to “NovoNordisk”* On 14th March 2014, Moscow Arbitration Court confirmed legitimacy of a warning issued by the Federal Antimonopoly Service (FAS Russia) to “Novo Nordisk” Ltd. due to elements of violating Clauses 3 and 5 Part 1 (...)

The Russian Arbitration Court upholds the Competition Authority’s decision sanctioning railway company for abuse of dominance (Russian Railways)
Russian Federal Antimonopoly Service (Moscow)
The Court found that “Russian Railways” OJSC violated the antimonopoly law* On 12th March 2014, the Federal Arbitration Court of the Moscow District confirmed legitimacy of the decision and determination of the Federal Antimonopoly Service (FAS Russia) with regard to “Russian Railways” OJSC upon (...)

The Bosnia & Herzegovina Court upholds the infringment decision of the Competition Authority concerning abuse of dominant positions on the market for fast money transfer services (Raiffeisen Bank)
University of Macau - Faculty of Law (Macau)
On 6 November 2012 the Competition Authority of Bosnia & Herzegovina (KV) found that four Western Union agents have abused their collective dominant position on the market for fast money transfer services by including the exclusivity clauses in their cooperation agreements with the banks (...)

The Italian Council of State reinstates penalties against a company for an abuse of dominant position to artificially extend the patent protection (Pfizer)
Ashurst (Milan)
Italy’s Council of State reinstates the fine imposed on Pfizer for delaying a generic’s market entry* On 12 February 2014, Italy’s Council of State (the “CdS”) dismissed the ruling of the lower administrative court (the “TAR Lazio”) which quashed the decision of Italian Competition Authority (the (...)

The Moscow Russian Arbitration Court of Appeal upholds the decision of the Competition Authority having judged that a glucose syrup manufacturer did not abuse its dominance (Cargill)
Russian Federal Antimonopoly Service (Moscow)
The Court Суд acquitted the largest producer of starch and syrup and supported FAS decision* On 10th February 2014, the 9th Arbitration Appeal Court confirmed legitimacy of the decision of the Federal Antimonopoly Service (FAS Russia) that “Cargill A.O.” CJSC and “Cargill” Ltd. did not abuse market (...)

The Canadian Federal Court of Appeal rules that abuse of dominance provisions could potentially apply to a person that controls a market without competing in that market (Toronto Real Estate Board)
Davies Ward Phillips & Vineberg (Toronto)
Canadian Federal Court of Appeal Expands Scope of Competition Act’s Abuse of Dominance Provisions* On February 3, 2014, the Federal Court of Appeal overturned the Competition Tribunal’s 2013 decision dismissing the Commissioner of Competition’s abuse of dominance allegations against the Toronto (...)

The Yaroslavl Regional Arbitration Court upholds the decision of the Russian Competition Authority imposing a fine on a heat energy provider for abuse of dominance (Yaroslavl GK)
Russian Federal Antimonopoly Service (Moscow)
Arbitration Court took the side of Yaroslavl OFAS Russia in a dispute with “Yaroslavl Generating Company”* Yaroslavl Regional Arbitration Court confirmed legitimacy of over 563,400 RUB fine imposed by the Office of the Federal Antimonopoly Service in the Yaroslavl Region (Yaroslavl OFAS Russia) (...)

The UK High Court rules on the relevance of commercial gain for establishing an abuse of dominance on the market for airport to city centre bus route (Arriva The Shires / London Luton Airport Operations)
Blackstone Chambers (London)
Abuse of dominance: no commercial gain, no abuse?* Is it necessary for there to be some commercial benefit to be gained by a dominant undertaking from its conduct before that conduct can be condemned as abusive? No, says Mrs Justice Rose in Arriva the Shires Ltd v London Luton Airport (...)

The Slovenian Supreme Court upholds the decision of the Competition Authority finding that a company abused its dominance on the market for collective management of copyrights (SAZAS)
Fatur Law Firm (Ljubljana)
Introduction In SAZAS case, the Slovenian Competition Protection Office (hereinafter referred to as the CPO) adopted a partial decision in April 2011 (Case 306-35/2009-108), finding that Združenje skladateljev, avtorjev in založnikov za zaščito avtorskih pravic Slovenije (hereinafter referred to (...)

The Russian Arbitration Court upholds the decision of the Competition Authority delivering a warning against a pharmaceutical company refusing to deal with a medical service provider (Baxter)
Russian Federal Antimonopoly Service (Moscow)
Arbitration Court supported FAS Russia: “Baxter” should have listened to warning* On 27th January 2014, Moscow Arbitration Court confirmed legitimacy of the warning issued by the Federal Antimonopoly Service (FAS Russia) to “Baxter” CJSC due to signs of violating the antimonopoly law (Clause 5 (...)

The Federal Arbitration Court of the North-Caucasian District upholds the decision of the Russian Competition Authority sanctioning an electricity provider for abuse of dominance (Donenergosbyt)
Russian Federal Antimonopoly Service (Moscow)
The Court confirmed the rightness of FAS position with regard to an energy supplier* On 21st January 2014, the Federal Arbitration Court of the North-Caucasian District supported the position of the Federal Antimonopoly Service (FAS Russia) with regard to “Donenergosbyt” Ltd. The Antimonopoly (...)

The Moscow Arbitration Court of Appeal upholds the decision of the Russian Competition Authority finding that an undertaking created discriminatory conditions for its suppliers of fish (Metro Cash & Carry)
Russian Federal Antimonopoly Service (Moscow)
The 9th Arbitration Appeal Court: “METRO Cash & Carry” created discriminatory conditions for fish suppliers* On 20th January 2014, the 9th Arbitration Appeal Court reversed the ruling of Moscow Arbitration Court to allow the claim of “METRY Cash & Carry” Ltd. on challenging the decision (...)

The Milan Enterprises Court awards a local telecom operator damages in a follow-on case of a margin squeeze decision against the incumbent operator (Brennercom / Telecom Italia)
Studio Legale Scoccini (Rome)
Introduction On the December 27 2013, the Enterprises Court of Milan awarded damages to Brennercom, a fixed-line telecom operator active in the north-east of Italy, in respect of a claim brought against Telecom Italia. This case arose as a follow-on action from a decision of the Italian (...)

The Paris Court of Appeal upholds the French Competition Authority’s decision holding that direct access to telecom company subscribers is not an essential facility (Cogent Communications / France Télécom)
Herbert Smith Freehills (Paris)
Introduction At a time when cloud computing is changing the face of the Internet, the decision of the Paris Court of Appeal acts as a reminder that the Internet is primarily a matter of physical wires. In December 2013, the Court ruled on an appeal of a French competition authority (ADLC) (...)

The Irish High Court finds no abuse of dominant position by a public port authority after it imposed a levy per passenger (Island Ferries Teoranta)
University College London
The Plaintiff is the sole commercial operator of a passenger ferry service from the Irish mainland to a harbour at Kilronan on the Aran Islands. In October 2011 the public body responsible for the management of Kilronan harbour passed a law which imposed significant charges for the use of the (...)

The Slovenian Supreme Court upholds the Competition Authority’s prohibition decision finding an abuse of dominant position in the market for TV advertising (Pro Plus)
Fatur Law Firm (Ljubljana)
In PRO PLUS case, the Slovenian Competition Protection Agency (hereinafter referred to as the CPA) adopted a prohibition decision in April 2013 (Case 306-90/2009), finding that PRO PLUS, i.e. Produkcija Plus, a leading broadcasting and internet media company in Slovenia, which is part of the (...)

The Slovenian Supreme Court annuls the Competition Authority’s infringement decision against a telecom company for abuse of dominance in the mobile telecommunications market (Itak Džabest)
Fatur Law Firm (Ljubljana)
On 26 November 2013, the Supreme Court of the Republic of Slovenia ruled in case G 9/2012, Telekom Slovenije v. Slovenian Competition Protection Agency (hereinafter referred to as CPA). The Supreme Court annulled the CPA’s decision (Case 306-14/2009), which found anti-competitive conduct on the (...)

The Italian Regional Administrative Court of Second Instance annuls the Competition Authority’s decision concerning an abuse of dominant position in the motorway assistance sector (Europe Assistance VAI)
Lipani Catricalà (Rome)
*Italian antitrust administrative case law. Overview of all decisions from October to December 2013 (Third contribution) 1. Premise – This work is part of a project (hereinafter, the “Project”) aimed to offer a general, quarterly overview of all the decisions of Italian administrative courts, (...)

The UK Court of Appeal refuses interim injunction against the alleged refusal to deal as the claimant failed to identify any market on which the defendant could conceivably be dominant (Chemistree Homecare / Abbvie)
St John’s Chambers (Bristol)
United Kingdom: interim injunctions in competition litigation* Private competition litigation is continuing to develop in the United Kingdom. The courts and the Competition Appeal Tribunal are seeing an increase in the number and complexity of follow-on damages actions, often between foreign (...)

The Lisbon Court of Appeal states that the limitation period of a claim for damages caused by anticompetitive behaviour starts with the awareness of the facts by the claimant and not with the Competition Authority’s decision (ADSL)
Pares Advogados (Lisbon)
On 31 October 2013, the Lisbon Court of Appeal confirmed the decision of the Lisbon Court of First Instance, denying the appellant the right to claim compensation for the losses suffered due to abuse of dominant position by Portugal Telecom and ZON between 2002 and 2003, fined by the Portuguese (...)

The Guangdong High Court upholds the Shenzhen Intermediate Court’s decision in an abuse of dominance case involving IP rights (Huawei / Interdigital)
Fingleton (London)
Guangdong High Court largely upholds Shenzhen Intermediate Court decision, requires Interdigital to pay full amount of damages requested by Huawei, and stipulates 0.019% maximum patent licencing fee. On Monday 28th October 2013 the Guangdong High Court reached its decision in the ongoing (...)

The Lithuanian Supreme Administrative Court confirms the judgement of the Vilnius District Administrative Court fining a retailer for unfair practices (Palink)
Max Planck Institute for Innovation and Competition (Munich)
On 18 October 2013 the Supreme Administrative Court of Lithuania issued a final judgment in the case on the alleged infringement of Article 3 of the Law on the Prohibition of Unfair Practices of Retailers of the Republic of Lithuania. In the decision of the Competition Council against UAB (...)

The EU Commission consults on commitments to license on FRAND terms regarding the use of standard-essential patents (Samsung)
Garrigues (Brussels)
Samsung offers commitments to appease DG Comp* The most important (antitrust-related) news last week was the European Commission’s announcement that it will market test a commitment proposal submitted by Samsung regarding the enforcement of its SEPs (Standard Essential Patents) related to (...)

The Bosnia and Herzegovina Court quashes the no-infringement of the Competition Authority for the failure to conduct an efficient investigation (Telekomunikacije)
University of Macau - Faculty of Law (Macau)
On 12 October 2011 the Competition Authority of Bosnia and Herzegovina (KV) closed its investigation into the alleged abuse of dominant position on the part of the incumbent telecom operator Telekomunikacije RS a.d. The KV‘s investigation was prompted by a complaint lodged by an independent (...)

The Italian Regional Administrative Court of First Instance partially annuls the Competition Authority’s decision concerning an abuse of dominant position in the gas distribution services sector (Italgas)
Lipani Catricalà (Rome)
*Italian antitrust administrative case law. Overview of all decisions from October to December 2013 (Third contribution) 1. Premise – This work is part of a project (hereinafter, the “Project”) aimed to offer a general, quarterly overview of all the decisions of Italian administrative courts, (...)

The Czech Supreme Administrative Court supports findings by the Office for Protection of Competition as regards relevant market definition in predatory pricing case (Student Agency)
Skils (Prague)
On 30 September 2013, the Supreme Administrative Court cancelled the judgment of Regional Court in Brno in the case regarding alleged predatory pricing by Student Agency (a leading bus transport company) and remanded the case back to it. The Regional Court in Brno previously quashed the (...)

The Czech Supreme Administrative Court cancels the judgment of the Regional Court in a predatory pricing case and guides the use of economic analysis (Student Agency)
Vilímková Dudák (Prague)
Subject matter of the case On 3 November 2010 Student Agency, s.r.o. (“Student Agency”), a transport services and travel services provider was found guilty by the Office for Protection of Competition (the “Office”) for an abuse of its dominant position on the market for public passenger bus (...)

The Brussels Court of Appeal upholds the Competition Authority’s decision to fine a French media distributor for operating an abusive rebate scheme (Presstalis)
Van Bael & Bellis (Brussels)
,
Van Bael & Bellis (Brussels)
In a judgment of 27 September 2013, the Brussels Court of Appeal upheld the decision of the Belgian Competition Council imposing a fine of € 245,530 on Presstalis for operating an abusive rebate scheme. Presstalis, previously known as Nouvelles Messageries de la Presse Parisienne, is a French (...)

The EU Court of Justice AG Wathelet proposes to the EU Court of Justice to annul a judgement of the General Court in order to force it to exercice its full jurisdiction to review fines imposed by the Commission (Telefónica)
General Court of the European Union (Luxembourg)
,
White & Case (Brussels)
,
White & Case (Brussels)
The level of fines imposed by the European Commission in competition cases has attracted controversy for more than ten years. The often deferential approach of the European courts to hearing appeals has also been criticised, but in many cases the courts have largely left untouched the (...)

The EU Court of Justice maintains the validity of the Commission’s decision not to investigate the complaint due to the low likelihood of establishing a dominant position of printer manufacturers on ink cartridge aftermarket (EFIM)
University of Amsterdam
This article has been nominated for the 2014 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The EFIM-case: no dominant position of printer manufacturers on ink cartridge aftermarket* Ink in cartridges for printers is often called ‘black gold’, or (...)

The Italian Regional Administrative Court of First Instance annuls the Competition Authority’s decision concerning the abuse of the dominant position of a company aimed to exclude competitor’s entry into mass retail markets (Coop Estense)
Lipani Catricalà (Rome)
1. Premise – This work is the only contribution of a project (hereinafter, the “Project”) aimed to offer a general, quarterly overview of all the decisions of Italian administrative courts, which involve the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato, (...)

The South African Competition Tribunal confirms the second significant administrative penalty imposed on the national incumbent provider of fixed-line telecommunication services for engaging in margin squeezing (Telkom)
Primerio (Johannesburg)
South Africa: Telkom fined again…* South Africa’s Competition Tribunal had a busy week last week tasked with considering the proposed penalties for the various construction companies and also confirming the second significant administrative penalty on South Africa’s incumbent provider of fixed (...)

The US Court of Appeals for the Ninth Circuit affirms the order of dismissal as the allegation of a relevant market of black hot rolled coiled steel was insufficient as a matter of law failing to negate the likelihood of supply-side entry (Gulf States / Nucor)
Sheppard Mullin (Los Angeles)
Failure to Adequately Allege Lack of Supply Cross-Elasticity Dooms Attempted Monopolization Action to “Quick Look” Dismissal* GULF STATES REORGANIZATION GROUP, INC. V. NUCOR CORP. (11th Cir. July 15, 2013) No. 11-14983. In 1999, Gulf States Steel, Inc., a participant in a market described as (...)

The Ankara Administrative Court annuls the decision of the Competition Authority which rejected the alleged predatory pricing and abuse of regulatory procedures of the Turkish national carrier airline (Turkish Airlines / Pegasus)
Ankara Hacı Bayram Veli University (Ankara)
This study analyses the decision of the Ankara Administrative Court in which it has annulled the decision of Turkish Competition Authority (TCA) to reject the allegations that Turkish Airlines engaged in predatory pricing and abused regulatory procedures in the market for domestic and (...)

The Paris Court of Appeal upholds the Competition Authority’s decision holding that a parent company and its subsidiary are jointly liable for an abuse of dominance in the French overseas departments (Orange Caraïbe)
Herbert Smith Freehills (Paris)
Introduction On July 4 2013, the Paris Court of Appeal upheld for the most part the decision of the French competition authority (the ADLC) imposing a 60 million euro fine on Orange Caraïbe and its parent company France Télécom for having abused their dominant position in the French overseas (...)

A French Court of Appeal dismisses claims that a compulsory affiliation scheme for supplementary reimbursement of healthcare costs infringes Article 102 and 106 TFEU (Hurstel-Koenig)
Baker Botts (Brussels)
In three identically worded judgments dated 28 June 2013, the Court of appeal of Colmar (hereinafter the ‘Court of appeal’) dismissed claims that a compulsory affiliation scheme for supplementary reimbursement of healthcare costs amounts to a State measure contrary to Article 102 TFEU read in (...)

The Finnish Market Court issues an interim decision in a predatory pricing case concerning the dairy products sector (Valio)
University of Helsinki
The Finnish Market Court has issued an interim decision in a major predatory pricing case. The case concerns a decision and proposal for imposing fines by the Finnish Competition Authority on 20.12.2012. In its decision, the Competition Authority ordered Valio Ltd, a Finnish processed dairy (...)

The Finnish Market Court upholds the Competition Authority’s decision ordering the cessation of the predatory pricing on the market for dairy products (Valio)
Finnish Competition and Consumer Authority (Helsinki)
Market Court: Valio must comply with Finnish Competition and Consumer Authority decision in spite of appeal* In an interim decision handed down on 28 June 2013, the Market Court rejected an appeal by Valio, in which it applied for a prohibition on implementation in the case concerning the (...)

The US Supreme Court reverses the judgment of the Court of Appeals for the Eleventh Circuit and leaves the structuring of the rule of reason antitrust litigation to the lower courts (Actavis)
Cleveland University - Marshall School of Law
Just What on Earth Did Actavis Really Say? And Does It Mean Something for Section 1 More Broadly?* It’s going to be a strict, nearly-per-se quick look rule, folks, in more or less every reverse-payment case likely to be brought from here on out. Dollars-to-donuts. A few weeks have gone by, (...)

The Finnish Market Court finds no error by the Competition Authority in not investigating alleged abuse by a national sports federation (Suomen Ampumaurheiluliitto)
University of Helsinki
The Finnish Market Court has found that a decision by the national Competition Authority to dismiss a complaint about a sports federation was appropriate. X, a Finnish shooting sports athlete, had filed a complaint (a request for investigation) with the Finnish Competition Authority, submitting (...)

The Spanish Supreme Court validates the Competition Authority’s interpretation of excessive prices (Explosivos de Canarias)
Spanish Competition Authority (Madrid)
,
Cuatrecasas (Barcelona)
,
Cuatrecasas (Madrid)
On May 29, 2013, the Spanish Supreme Court issued judgment number 2660/2013 on the appeal that Canarias Explosivos, S.A. (“Canarias Explosivos”) submitted against the judgment of the Spanish National Court (Audiencia Nacional) on December 10, 2009. The Supreme Court considered that there were no (...)

The Slovak Supreme Court upholds the Competition Authority’s decision on prohibition of abuse in ‘green dot’ licensing (ENVI‑PAK)
European Commission (Brussels)
Slovakia: The Supreme Court upholds Authority’s Decision in Banking Cartel Case* On 23 May 2013, the Supreme Court of the Slovak Republic (Supreme Court) confirmed the decision of the Antimonopoly Office of the Slovak Republic (the Office) imposing a fine of € 18 394 on ENVI‑PAK, a. s. (...)

The Italian Supreme Administrative Court confirms the Competition Authority’s decision imposing a fine against construction materials company for abusing its behavior by aiming to exclude competitor’s entry into the plasterboard market (Saint Gobain)
Lipani Catricalà (Rome)
*Italian antitrust administrative case law. Overview of all decisions from April to June 2013 (Fourth and last contribution) 1. Premise –This work is the fourth and the last contribution of a project (hereinafter, the “Project”) aimed to offer a general, quarterly overview of all the decisions of (...)

The US Supreme Court denies defendants’ petition for certiorari concerning a decision of the Third Circuit raising significant issues as to how a court should analyze “market share discounts” by a dominant firm (ZF Meritor / Eaton)
Cornell University
On April 29, 2013, the U.S. Supreme Court denied defendant’s petition for certiorari with respect to the Third Circuit’s 2012 decision in ZF Meritor LLC v. Eaton Corp. (696 F.3d 254). Since the case raised significant issues as to how a court should analyze “market share discounts” by a dominant (...)

The US Supreme Court declines to hear an antitrust case leaving uncertainty regarding customer loyalty programs (ZF Meritor / Eaton)
Womble Bond Dickinson (Washington)
Supreme Court Declines to Hear Antitrust Case Leaving Uncertainty Regarding Customer Loyalty Programs* On April 29, 2013, the Supreme Court declined to review a decision that had created uncertainty as to when a manufacturer’s customer loyalty program may violate antitrust laws. Most circuits (...)

The Slovak Supreme Court upholds the Competition Authority’s decision on the abuse of a dominant position in the national petrol and diesel oil wholesale markets (Slovnaft)
White & Case (Bratislava)
On April 18, 2013, in its decision on the appeal filed by the Slovak Antimonopoly Office (the “AMO”), the Slovak Supreme Court (the “Supreme Court”) overturned the judgment of the Bratislava Regional Court (the “Regional Court”) of March 22, 2012 and upheld the AMO decision sanctioning Slovnaft, a.s. (...)

The Canadian Competition Tribunal dismisses the action based on alleged abuse of dominance against a non-profit corporation founded by a group of real estate practitioners (Toronto Real Estate Board)
Davies Ward Phillips & Vineberg (Toronto)
Competition Tribunal Dismisses Abuse of Dominance Case Against The Toronto Real Estate Board* Here is an item on an important decision of Canada’s Competition Tribunal written by my partners George Addy, Sandra Forbes, John Bodrug and Jim Dinning. It is especially relevant for trade (...)

The Canadian Competition Tribunal dismisses an abuse of dominance case in the market for residential real estate brokerage services (Toronto Real Estate Board)
Davies Ward Phillips & Vineberg (Toronto)
,
Davies Ward Phillips & Vineberg (Toronto)
,
Davies Ward Phillips & Vineberg (Toronto)
Competition Tribunal Dismisses Abuse of Dominance Case Against The Toronto Real Estate Board* On April 15, 2013, the Canadian Competition Tribunal released its decision dismissing the Commissioner of Competition’s application against the Toronto Real Estate Board (“TREB”). The Commissioner had (...)

The UK Competition Appeal Tribunal awards damages in a follow-on claim arising from the abuse of dominance on the market for transportation and partial treatment of water (Albion Water / Dŵr Cymru Cyfyngedig)
Blackstone Chambers (London)
Albion v Dwr Cymru: Incompetence and counterfactuals* The Competition Appeal Tribunal today delivered that rarest of beasts: a judgment awarding damages in a follow-on claim. After its decade-long fight, Albion Water has been awarded around £2 million for Dŵr Cymru’s abuse of dominant position in (...)

The UK Competition Appeal Tribunal awards the highest damages ever in a case involving an abuse of dominant position in the water sector (Albion Water)
One Essex Court (London)
There are approximately 45 private actions for damages pending in the United Kingdom Courts. Some are stayed pending final decisions of the Commission and the European Courts; some are at the disclosure stage; some are setting up “confidentiality rings” prior to disclosure; and others are lost in (...)

The UK Competition Appeal Tribunal dismisses the claim for exemplary damages against a water management company (Albion Water / Dŵr Cymru Cyfyngedig)
Preiskel (London)
Exemplary Damages in Competition Litigation* Much ink has been spilt following 2 Travel v. Cardiff Bus and Albion Water v. Dŵr Cymru Cyfyngedig on the subject of competition litigation in Europe. An axiom with varying justification is that European competition litigation must not embrace (...)

The US Supreme Court reverses the decisions of the lower courts and emphasizes that any model supporting a plaintiff’s damages case must be consistent with its liability case (Comcast / Behrend)
Sterlington
Comcast v. Behrend Sets a Higher Bar for Class Certification* On March 27, 2013, the U.S. Supreme Court continued its recent trend of imposing more stringent standards for class certification in Comcast Corporation v. Behrend, 569 U.S. ___ (2013). At issue was whether the proponents of (...)

The Brussels Court of Appeal annuls the Competition authority’s decisions requiring a leading diamond supplier to continue supplying Belgian diamond trader (De Beers / Spira)
Van Bael & Bellis (Brussels)
On 26 March 2013, the Brussels Court of Appeal annulled three decisions of the President of the Competition Council who had extended the preliminary measures requiring leading diamond supplier De Beers to continue supplying rough diamonds to Belgian diamond trader Spira. The Brussels (...)

The Lithuanian Supreme Administrative Court declares that the Competition Authority has to perform a new evaluation of commitments since its decision lacked motives and was inconsistent (Viasat)
Raimundas Moisejevas (Vilnius)
Background On 22 November 2011, the Lithuanian Competition Council passed resolution on termination of investigation proceedings concerning conformity of Viasat World Limited and Viasat AS actions to the Article 9 of the Competition law. The present article of the Competition law prohibited (...)

The Lithuanian Supreme Administrative Court draws the limitations of the Competition Authority’s discretion to close the investigation under the rules of procedure (Viasat)
Valiunas Ellex (Vilnius)
Viasat case is a national precedent setting the boundaries of the discretion of Lithuania competition authority to close the investigation subject to undertakings. In 2009 Lithuanian competition authority launched an investigation into the alleged infringement of Article 102 TFEU and its (...)

The US District Court for the District of Columbia dismisses claims of “shared monopoly” against two companies in the market for rail freight transportation services (Union Pacific / BNSF)
Cornell University
On February 26, the United States District Court for the District of Columbia granted defendants’ motion to dismiss Section 1 and Section 2 claims against Union Pacific Railroad Company ("UP") and BNSF Railway Company ("BNSF"). (Oxbow Carbon & Minerals LLC, et. al., v. Union Pacific Railroad (...)

The Danish Supreme Court ends a decade-long case concerning the national postal incumbent by delivering the final judgment in the predatory price case (Post Danmark)
Kromann Reumert (Copenhagen)
On 15 February 2013, the Danish Supreme Court ended the decade-long Post Danmark case by delivering the final judgment in the case. This note gives a brief overview of the facts and the procedure of the case and then comments on what we can learn from the Supreme Court judgment in its (...)

The Danish Supreme Court reverses the Competition Authority’s decision and finds that the national postal carrier incumbent did not abuse its dominant position by applying different prices to its customers and certain customers of a competitor (Post Danmark)
Plesner (Copenhagen)
On 15 February 2013, the Danish Supreme Court reversed a decision by the Danish Competition Council according to which the national postal operator, Post Danmark, had abused a dominant position on the market for unaddressed mail by charging different prices to its own customers compared to the (...)

The Italian Supreme Administrative Court upholds the Competition Authority’s decision fining leader in construction markets for abuse of a dominant position on the market for plasterboard (Saint Gobain)
Covington & Burling (Brussels)
,
United Kingdom Competition Authority (London)
With its judgment of 12 February 2013, the Italian Supreme Administrative Court (Consiglio di Stato) upheld the judgment of the Italian Administrative Court of First Instance (TAR Lazio) confirming the 2010 decision of the Italian Competition Authority (ICA) fining Saint Gobain Ppc Italia (...)

The UK High Court dismisses interim injunction in abuse of dominance case concerning refusal to supply in HIV prescription medicines market (Chemistree Homecare / Abbvie)
Van Bael & Bellis (Brussels)
On 11 February 2013, the English High Court dismissed an application for an interim injunction in an abuse of dominance case concerning an alleged refusal to supply a patented HIV prescription medicine. Chemistree Homecare Ltd (the “claimant”) had applied for an interim injunction against (...)

The Italian Council of State rules on the issue of dominant firms’ duty to supply essential information beyond the requirements of sector regulation (Bayer)
University of Naples
Italy’s highest administrative court handed down an important ruling on the issue of the dominant firms’ duty under Article 102 TFEU to grant their competitors access to essential information when sector regulation encourages such a disclosure. By its judgment of 11 January 2013, no. 548 (the (...)

The Italian Supreme Administrative Court reinstates the Competition Authority’s decision fining a pharmaceutical group for abuse of dominant position in the market for the production and commercialisation of fosetyl-based fungicides against downy mildew in grapes (Bayer)
Covington & Burling (Brussels)
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United Kingdom Competition Authority (London)
With decision of 11 January 2013, the Italian Supreme Administrative Court (Consiglio di Stato) quashed a judgment of the Italian Administrative Court of First Instance (TAR Lazio) and upheld the 2011 Italian Competition Authority’s (ICA) decision fining Bayer CropScience AG and Bayer (...)

The Italian Council of State reinstates a € 5.1 million fine initially imposed on a pharmaceutical company by the Competition Authority for its alleged abuse of dominant position in the market for the production and commercialisation of fosetyl-based fungicides (Bayer)
Van Bael & Bellis (Brussels)
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Polybius (Brussels)
On 22 January 2013, it was reported that the Italian Council of State – Italy’s highest jurisdiction in competition cases – had reinstated a € 5.1 million fine against Bayer initially imposed on the company by the Italian Competition Authority (“ICA”) for its alleged abuse of dominant position (...)

The Spanish Administrative Tribunal of Contractual Appeals rules on the need to cancel the award and rerun a tender when faulty documents and their interpretation can give rise to discrimination (Cespa Espa Conten / Valladolid Regional Logistics Unit of the Army)
University of Bristol - Law School
On 22 January 2013, the Spanish Central Administrative Tribunal of Contractual Appeals (Tribunal Administrativo Central de Recursos Contractuales, SCATCA) issued its Decision 29/2013 regarding the award of a contract for the disposal of waste and hazardous substances generated by the regional (...)

The Lithuanian Supreme Court upholds the Competition Authority’s decision finding abuse of dominant position in the fuel sector (Orlen Lietuva)
European Commission (Brussels)
Lithuania: The Supreme Administrative Court upholds Competition Council’s Decision finding Abuse of Dominant Position in Fuel Sector* On 21 January 2013, the Supreme Administrative Court of Lithuania (the Supreme Court) issued a final ruling stating that the Competition Council (CC) by its (...)

The French Supreme Administrative Court rules that a contracting authority may limit the number of lots awarded to a single contractor to foster competition and may award a lot to a public law entity (Laboratoires Biomnis)
University of Aix-Marseille
The first point, which had never been dealt with by the Conseil d’Etat, is an important one since the French courts having jurisdiction as to the substance of the matter had adopted different positions and since neither the directive 2004/18 nor the Code des marchés publics (public procurement (...)

The Kazakhstani Administrative Court fines two major regional cement producers for tacit collusion (Semei Cement Plant / Bukhtarma cement company)
Center for Development and Protection of Competition Policy (Astana)
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Ernst & Young (Astana)
The regional division of the Antimonopoly agency – the Antimonopoly inspection of the East Kazakhstan oblast (‘Inspection’) conducted an investigation over the main competitors in the regional cement market, "Semei Cement Plant" LLC (‘LLC’) and "Bukhtarma cement company" JSC (‘JSC’), whose main (...)

The Swedish Market Court annuls interim order prohibiting the ice hockey league association from boycotting players from North America’s hockey league (Svenska Hockeyligan)
European Commission (Brussels)
Sweden: The Competition Authority’s Interim Order prohibiting Hockeyligan from boycotting NHL Players annulled by Swedish Market Court* On 18 December 2012, the Swedish Market Court (the Court) has annulled the Swedish Competition Authority’s (SCA) interim order prohibiting the Swedish ice (...)

The German Federal Court of Justice clarifies that ‘legal impossibility’ can be used as a justification for denying potential competitor access to essential facilities and provides guidance on the respective burden of proof (Ferry Port Puttgarden II)
Freshfields Bruckhaus Deringer (Berlin)
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Hogan Lovells (Munich)
I. The Facts Scandlines Deutschland GmbH (Scandlines) is the owner of the Puttgarden/Fehmarn ferry port in Germany and the sole provider of ferry services between Puttgarden and Rødby/Lolland in Denmark. Two Norwegian shipping companies sought access to the ferry port in Puttgarden in order to (...)

The German Federal Court of Justice clarifies conditions for invoking “legal impossibility” as justification for refusal to grant access to an essential facility (Scandlines)
Van Bael & Bellis (Brussels)
By judgment of 11 December 2012, recently published, the German Federal Court of Justice (“BGH”) annulled the judgment of the Higher Regional Court of Düsseldorf (“OLG Düsseldorf”) of 7 December 2011 and ruled that Scandlines Deutschland GmbH (“Scandlines”), which is the owner of the ferry port (...)

The EU Court of Justice dismisses pharmaceutical company’s appeal against the Commission and EU General Courts’ findings that it abused its dominant position by misusing patent systems and pharmaceutical marketing procedures to exclude generic competitors from the market and restrict parallel imports (AstraZeneca)
Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
1. Introduction The Court of Justice of the EU (ECJ) has dismissed AstraZeneca’s appeal against the Commission’s and General Court’s findings that the company abused its dominant position under Article 102 TFEU by misusing the patent system and pharmaceutical marketing procedures in order to (...)

The EU Court of Justice upholds the Commission’s decision finding a case of abuse of patent systems and the procedures for marketing pharmaceutical products to prevent or delay the arrival of competing for generic medicinal products on the market for proton pump inhibitors (AstraZeneca)
Ashurst (Milan)
ECJ rejects appeal relating to abuse of the patent system and the procedures for marketing of drugs* On 6 December 2012, the European Court of Justice (“ECJ”) handed down its ruling rejecting AstraZeneca’s (“AZ”) appeal in relation to the Losec case. In the first instance, the General Court largely (...)

The EU Court of Justice entirely dismisses pharmaceutical company’s appeal on abusive patent misuse (AstraZeneca)
Mircea (Bucharest)
I. Introduction On 6 December 2012, the CJEU issued its judgment in the long-running AstraZeneca litigation. The General Court’s judgment has been upheld in its entirety. The only victorious battle scored by the appellant refers to what type of conduct before the national regulatory authorities (...)

The Supreme Court of Chile condemns abuse of dominant position in the cigarette market (Chiletabacos)
University College London
On 4 December 2012, the Supreme Court handed down its judgment in the appeals brought by the National Economic Prosecutor’s Office of Chile (Fiscalía Nacional Económica or FNE) and Philip Morris Chile Comercializadora Limitada (Philip Morris) – subsidiary of Philip Morris International -, (...)

The Irish High Court finds that the State does not operate as an “undertaking” in the use of its ambulance fleet for emergency services and the transport of public patients (Lifeline)
Arthur Cox (Dublin)
This case concerned a private undertaking, Lifeline Ambulance Services Limited (“Lifeline”) that operates a fleet of ambulances and is engaged in the business of providing transport for hospital patients and others in need of such services brought against the State owned Health Service Executive (...)

The Israeli Restrictive Trade Practices General Director declares certain entities "monopolies" in the supply of non-liquefied natural gas (Noble Energy Mediterranean / Delek Drilling / Avner Oil & Gas Exploration)
Eshel, Ashlagi, Rozent (Tel Aviv)
Introduction On November 13, 2012, the Restrictive Trade Practices General Director (the “General Director”) declared a few entities engaged in the exploration, production and sale of natural gas - Noble Energy Mediterranean, Delek Drilling and Avner Oil & Gas Exploration (both of the Delek (...)

The Czech Regional Court takes a strict view on the relevant market definition by the Competition Authority (Student Agency)
Skils (Prague)
On 9 November 2012, Regional Court in Brno cancelled the decision of Chairman of the Office for Protection of Competition ("Office") in a case concerning an alleged abuse of dominant position in the form of predatory pricing by Student Agency in response to an entry by competing bus company (...)